Park Manor Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1985

277 N.L.R.B. 197 (N.L.R.B. 1985)

PARK MANOR NURSING HOME
Park Manor Nursing Home, Inc . and Hospital Em-
ployees Local 1273, Laborers' District Council,
Laborers' International Union of North Amer-
ica, AFL-CIO. Case 5-CA-17000
31 October 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 12 July 1985 Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Park Manor
Nursing Home, Inc., Baltimore, Maryland, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
Steven J. Anderson, Esq., for the General Counsel.
John S. Singleton, Esq., of Baltimore, Maryland, for the
Respondent.
Carol Connor Flowe, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case
was heard at Baltimore, Maryland, on 16 and 17 May
1985. The charge was filed on 1 February 19851 by Hos-
pital Employees Local 1273, Laborers' District Council,
Laborers' International Union of North America, AFL-
CIO (the Union). The complaint, which issued on 15
March and was amended on 29 March, alleges that Park
Manor Nursing Home, Inc. (the Company or Respond-
ent) violated Section 8(a)(1), (3), and (4) of the National
I All dates are for the period of 1 April 1984 through 30 March 1985
unless otherwise indicated
197
Labor Relations Act. The gravamen of the complaint is
that the Company allegedly discharged) employee Emily
Hall because of her concerted activities and because she
cooperated in the investigation of a charge in Case 5-
CA-16689 filed by the Union against the Company. The
Company's answer denies the commission of the alleged
unfair labor practices. All'parties were afforded full op-
portunity to participate, to present relevant evidence, to
argue orally, and to file briefs. The General Counsel and
the Company each filed a brief.
On the entire record in this case2 and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the briefs and arguments of the parties, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a Maryland corporation with an office
and place of business in Baltimore, Maryland, is engaged
as a health care institution in the operation of a nursing
home providing comprehensive care services for the el-
derly. In the operation of its business, the Company an-
nually derives gross revenues in excess of $100,000 and
annually receives at its Baltimore facility goods and serv-
ices valued in excess of $5000 directly from points out-
side Maryland. I find, as the Company admits, that it is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. BACKGROUND
The Company's Nursing Home Operation;
Developments Prior to 28 January 1985; and Emily
Hall's Union Activity and Activities Related to the
Prior Unfair Labor Practice Proceeding
The Company's nursing home is located in a former
private home in an urban area, specifically on Eutaw
Place in Baltimore. The home is licensed for 50 beds,
and is usually almost full. Many of the patients are bed-
ridden, semi-ambulatory, or highly medicated. The build-
ing has four floors. The basement is occupied by the ad-
ministrative office, dietetic department, laundry, and em-
ployee cafeteria. As indicated by the testimony of Owner
and Administrator Henry Goldbaum, the first floor is oc-
cupied by patients who require the most care, the second
floor by those who need "moderate care," and the third
floor by those who are "pretty well self-help."3 The
Home has been in operation for about 30 years, and until
1980 was known as Park Hill Convalescent Home. In
1980 Blancaflor and Sons, Enterprises acquired owner-
2 The official transcript of proceedings is coirected. The General
Counsel's motion to correct transcript (Br., fn 1) is denied. There is no
pertinent entry p. 81, L. 24 of the transcript.
3 Therefore I do not credit the testimony of Director of Nursing Elvin
Edwards that the patients cannot be differentiated, by floor, in the
amount of care required
277 NLRB No. 28
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship of the Home, and operated it under the name of
Blancaflor Nursing Home. In the spring of 1983 Henry
Goldbaum became Blancaflor's administrator, and he
continued in that capacity until November 1983, when
he acquired ownership of the Home and commenced op-
erating under the present name. Goldbaum remained as
the administrator, in charge of day-to-day operations,
and he maintained an office in the basement of the facili-
ty. The Home has about 42 employees. Since 1982 Elvin
Edwards has been director of nursing and is in charge of
the nursing staff, which consists of 2 registered nurses
(RNs), 5 licenesed practical nurses (LPNs), and 19 geri-
atric nursing assistants , also known as aides. Edwards
shares her basement office with administrative secretary
Cleopatra Brown and bookkeeper Henry Rhodes. Ed-
wards is normally on duty from 9 a.m. to 5 p.m. The
Home operates on three shifts, with the day shift from 7
a.m. to 3 p.m. LPN Dorothy Norris is charge nurse on
the first shift, and in that capacity supervises the work of
five aides on that shift. Norris has authority to discipline
and discharge employees, but she has not exercised that
authority. Rather, Norris has deferred the exercise of
such functions to Edwards. It is undisputed that Ed-
wards and Norris are supervisors and agents of the Com-
pany within the meaning of the Act.
Blancaflor and the Union were parties to a collective-
bargaining contract covering the service and mainte-
nance employees, including aides. Emily Hall had
worked as an aide at the Home since June 1965. In 1981
she became a union steward, and- in that capacity she
processed grievances and participated in contract negoti-
ations. As administrator for Blancaflor, Henry Goldbaum
was aware of her position. When Goldbaum acquired the
Home, he hired a majority of the Blancaflor employees,
including Hall. There is a question whether, as of this
time, Hall was still union steward. Hall testified that she
remained as steward. However, there was no contract in
effect between the Union and the Company, and Hall
testified that her only functions as steward, after Novem-
ber 1983, consisted of organizing activity, which would
not bring her into contact with management. Goldbaum
testified that when he took over the Home, two other
employees were stewards. However, by letter dated 4
January 1985, the Union informed Goldbaum that Hall
and another employee (Mary White) would be present at
contract negotiations which were scheduled to com-
mence on January 9. Therefore it is evident that, at least
on receiving the letter, Goldbaum knew that Hall was
functioning as a union representative.
In the meantime, a series of events took place in 1984
which resulted in withdrawal of union recognition by the
Company, followed by unfair labor practice proceedings
which resulted in a settlement and renewal of recogni-
tion. Hall testified in sum as follows. In April, Goldbaum
summoned her to his office and requested her to circu-
late in a petition among the employees which stated as
follows:
We the undersigned members of the bargaining unit
no longer wish to be represented by the Hospital
Employees Local 1273 and request that we be given
the opportunity for official voting:
Signatures Date
Hall agreed, and personally signed the petition, without
dating her signature. However, the other employees re-
fused to sign and she so informed Goldbaum when she
returned the petition the next day, adding that "people
had to make up their own mind."4 In September Gold-
baum approached Hall at work with a petition which
was identical in form and language to the April petition,
except that it was typed on white instead of yellow
paper. According to Hall, this petition had signatures on
it; Goldbaum asked her to sign, she did, and she returned
the petition to him. This testimony is improbable, be-
cause Hall's signature appears first, undated, at the head
of a list of 12 signatures on the petition, which was pre-
sented in evidence. Hall further testified that, about 2
weeks later, Goldbaum again approached her at work
and asked her to date her signature, whereupon she an-
grily refused, asserting that she heard "too many lies"
that she had signed out the Union, that she would sign
nothing, and that Goldbaum should leave her alone and
let her work. Goldbaum, who was presented as an ad-
verse General Counsel witness and as a company wit-
ness, testified in sum as follows: In the summer of 1984, a
group of four or five employees, including Hall, came to
his office, said that they were disenchanted with the
Union, and asked how they could get rid of it. He told
them they would have to get a list of names and submit
it to the Board. He had no other conversations with Hall
about the matter, and did not see the petition until Sep-
tember, when another aide, Helen Burley, gave it to him
for safekeeping. Goldbaum initially testified that he
could not recall whether any signatures were on the peti-
tion, but subsequently testified that there were some
names. Goldbaum further testified that a day or two
later, Burley picked up the petition and later returned it
with more signatures. According to Goldbaum, he con-
tacted his attorney and, on the basis of the petition, they
decided to withdraw recognition of the Union. Gold-
baum testified that he did not solicit Hall or any other
employee to sign or circulate a decertification petition.
Goldbaum's version of the events, which suggests that
Burley was principally, if not exclusively, involved in
circulating the petition, is improbable, because Burley's
signature appears as the 11th in a list of 12 names. Hall
headed the list, followed by eight signatures dated 12
September, one dated 13 September, Burley's signature
dated 16 September, and another signature dated 17 Sep-
tember. Therefore it is evident, as Hall testified, that she
was initially involved in circulating the petition. Burley,
who was presented as a General Counsel witness, con-
firmed that there were already signatures on the petition
when she first saw it.
On 20 September the Union filed an unfair labor prac-
tice charge, and on 23 October the Regional Director
issued a complaint (Case 5-CA-16689), alleging that the
Company violated Section 8(a)(1) and (5) of the Act by
soliciting a revocation petition in April and September,
° Hall testified that she told Goldbaum that "you can't make people
sign a petition." In her investigatory affidavit, however, she stated that
she said that people had to make up their own mind
PARK MANOR NURSING HOME 199
promising the employees a wage increase if they rejected
the Union, bypassing the Union and dealing directly with
the employees concerning wages and benefits , and with-
drawing recognition from the Union . A hearing was
scheduled for 18 December , but the hearing never took
place . On 19 December the Company executed an infor-
mal Board settlement agreement , with a nonadmission
clause, which provided in sum that the Company would
recognize and bargain with the Union , refrain from en-
gaging in the alleged unlawful conduct and any other
violation of the Act, and post an appropriate notice.
Goldbaum testified that after the case was settled, but
before Hall's discharge , he learned that Hall would be a
witness in the unfair labor practice proceeding. Howev-
er, Ball testified that on the evening of 17 December she
told Nursing Director Edwards that she had to appear at
the Board hearing the next day, and that Edwards ex-
cused her, but counsel for the General Counsel later no-
tified Hall that she would not have to appear. Edwards
testified that she did not remember this conversation. I
credit Hall. It is unlikely that Hall would fail to notify
the Company if she expected to be absent from work be-
cause of the hearing. Additionally , there is credible evi-
dence that Goldbaum knew well before the hearing that
Hall would be the General Counsel's key witness. As in-
dicated, Helen Burley was presented as a General Coun-
sel witness . She testified in detail about pertinent prac-
tices and procedures at the Home. However , she pro-
fessed to be unable to remember a conversation in Sep-
tember with Goldbaum concerning the petition, or a
conversation in October with Goldbaum concerning Hall
and 'the NLRB . Burley admitted that she furnished the
Board's field examiner with an affidavit which described
such conversations , and that she told the truth when she
talked to the field examiner . On the basis of Burley's ad-
mission, I permitted pertinent portions of the affidavit to
be read in evidence . See Federal Rules of Evidence,
Rule 803 (5); Economy Fire & Casualty Co., 264 NLRB
16 fn. 1 ( 1982).
In her affidavit , Burley stated that , on 16 September,
Goldbaum asked her to get more signatures on the peti-
tion "to get the Union out, because we didn't need the
Union, because we are a family without the Union."
Goldbaum added that there were things he could do for
the employees without the Union. Later that day he told
Burley that he had informed the Union that he would
not sign a contract because of the petition, and he told
Burley to make sure she signed the petition . She did.
However, on 17 October, Goldbaum told her that "one
of you guys got me in a trick," but that he had "another
trick" he was "going to try ." Goldbaum said that Emily
Hall told the Board that he had taken the petition
around , but that he was not worried because it was "her
word against mine." Goldbaum told Burley to tell the
Board that she (Burley) had circulated the petition, i.e.,
to give the same version that Goldbaum subsequently
gave in his testimony in the present proceeding. Gold-
baum testified in sum that he did not recall such a con-
versation.
At the present hearing, Burley testified that she re-
garded her conversations with Goldbaum as private, and
having nothing to do with the present case, and that she
was unwilling to testify about these matters. In sum, Bur-
ley's professed inability to recall these relatively recent
events was based on her unwillingness to testify, not-
withstanding her belief that she told the truth when she
gave her affidavit. In these circumstances, I find that
Burley's affidavit is a more accurate reflection of the
truth than her professed inability to recall the events in
question, or Goldbaum's suggestion that Burley fostered
or initiated the petition (which Burley denied both in her
affidavit and on the witness stand). I find that, in April,
Goldbaum attempted, through Hall, to get the employees
to sign a revocation petition, at a time when Hall was
either disenchanted with the Union or believed that there
should be a Board-conducted election. He was unsuc-
cessful, however, and Goldbaum obtain only the undated
signature of Hall. Goldbaum tried again in September,
and this time became directly involved in circulating the
petition. However, he needed evidence that would
convey the impression that an employee or employees
were responsible for petition. Goldbaum circulated a
copy of the April petition but Hall, who by this time had
another change of heart, refused to cooperate by placing
a September date by her signature. After the Union filed
an unfair labor practice charge, Goldbaum attempted to
persuade Burley to tell the Board that she was responsi-
ble for the petition. But when Goldbaum realized that
Hall would testify against him, and that General Counsel
could thereby prove that the petition was invalid, he and
his attorney concluded that the Company had no alterna-
tive but to settle the case and recognize the Union. Gold-
baum, however, resolved that because Hall had played a
"trick" on him, he would play a trick on her, and he so
informed Burley. It is established law that evidence in-
volved in a settled or withdrawn charge may properly
be considered as background evidence in determining the
motive or object of a respondent in activities occurring
either before or after the settlement or withdrawal, whch
are in litigation. Steves Sash & Door Co. v. NLRB, 401
F.2d 676, 678 (5th Cir. 1968); NLRB v. Carpenters Dis-
trict Council of Kansas City, 383 F.2d 89, 95-96 (8th Cir.
1967). Moreover, Goldbaum's October conversation may
properly be considered as evidence with respect to the
Company's animus toward Hall, wholly apart from the
merits of the charge in Case 5-CA-16689. 1 find that
Goldbaum's statements to Burley are evidentiary with re-
spect to his motivation for Hall's subsequent discharge.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
The Discharge of Emily Hall on 30 January, and
Events Leading to the Discharge
On the morning of 30 January, Emily Hall was sum-
moned to a disciplinary interview in the administrative
office, conducted by Goldbaum. Nursing Director Ed-
wards was present, and Administrative Secretary Brown
was also present for the purpose of, taking notes of the
interview. At the close of the interview Goldbaum in-
formed Hall that she was terminated, and Edwards pre-
sented Hall with a typewritten "warning/disciplinary
notice," dated 28 January and signed by Edwards and
Goldbaum. The notice, which was prepared by Edwards
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the previous evening and typed by Brown on the morn-
ing of 30 January, checked "termination" as the disci-
pline imposed . The text of the notice stated as follows:
SUPER VISOR'S REMARKS
Mrs. Emily Hall , you left your assigned area
Rooms 202 and 203 with a total of ten residents-
e.g., three who ambulates with walkers and assist-
ance only; two who ambulates with canes under su-
pervision ; and one who has an unsteady gait, and
you left the facility without the knowledge of the
Charge Nurse , Mrs. Dorothy Norris, LPN, or the
Director of Nursing . You also failed to clock out
upon leaving the facility and upon your return.
The residents assigned to you for care were left
in jeopardy in terms of their safety and the meeting
of their care needs. If anything had happened to
you in your absence, you were on unauthorized ab-
sence.
Park Manor 's policy is that the Charge Nurse be
made aware of absence from assigned areas, and
that time cards are to be punched upon authorized
absence from the building and upon return to the
building.
As will be discussed , the notice contains inaccuracies and
other statements which tend to support the General
Counsel's position that the Company was grasping at
straws, and that the various and shifting reasons ad-
vanced by the Company for Hall's discharge were false
or pretextual.
The events which led to Hall's discharge commenced
on Monday , 28 January . On that day Hall was assigned
to attend to 10 female patients on the second floor. This
was the usual area in which she worked, and the usual
patients to which she was assigned . However, around
12:30 p.m., when the incident in question occurred, five
of the patients were in the dining room, and therefore
not in Hall's charge . (Although aides may assist in serv-
ing meals and retrieving trays, this process was complet-
ed, and the patients in the dining room were in the care
of a social worker or other person assigned to the dining
room.) Aides were entitled to a 30-minute lunch period
and two 15-minute breaks. Hall seldom left the patient
care area to take her breaks, although she was entitled to
do so. On this occasion Hall decided to use her morning
break for the purpose of purchasing something for her
cold at a drug store about one block from the Home.
Aide Helen Burley was assigned to 13 male patients, 8 or
9 of whom were on the third floor. Burley, like Hall,
had worked at the Home for 19 years. Hall asked Burley
whether she was going to be on the second floor for a
while. Burley answered that she was, because she was
giving baths there. Hall said , "Okay, because I want to
go out for a few minutes ." Burley replied, "All right. I'll
be down here on the floor." Hall walked away briefly
and then returned to say, "I 'm gone," Burley answered,
"Okay," and Hall left . Burley testified that she under-
stood that Hall was asking her to take care of Hall's pa-
tients in her absence , that she understood this to be her
responsibility , that she did watch Hall's patients , and that
no problems developed in Hall's absence (Burley assisted
one of Hall's patients to the bathroom , and then returned
to bathing her patient).'
Hall testified that when she went downstairs , she did
not see Dorothy Norris at her station desk, which was
located in the first floor hallway near the front entrance.
(Norris, as charge nurse , was Hall 's immediate supervi-
sor.) She looked down the hallway and saw Norris at a
sink, which was located in the hallway , a few feet for-
ward of the medicine room, which is located about 50
feet from the front entrance . According to Hall, Norris
appeared to be doing something with a medicine tray.
Hall testified that Norris saw her, that Hall (who had her
coat on) pointed in the direction of the drugstore, and
that Norris nodded her head up and down, where upon
Hall left the building. She did not punch her timecard on
leaving or returning to the building. Norris testified that
she did not see Hall on the occasion in question and that
Hall did not inform her that she was leaving the build-
ing, or ask her permission . She testified that she followed
her usual routine that day, which included preparation of
medicines at the medicine room, three times a day, in-
cluding the approximate time period when Hall left the
building. Norris was in fact present at the medicine room
shortly after Hall left, when Goldbaum approached her
about Hall's absence . Norris testified that she normally
used the sink only to wash her hands before going to the
medicine room . If Norris had been at the medicine room
when Hall left, then they could not have seen each
other, because the open door of the medicine room
would have blocked their view . If Norris had been at the
sink, then they might have seen each other , depending
on where Hall was standing in the hallway . The hallway
itself is not continuously straight . Rather, there is a break
in the hallway about midway between the front entrance
and the medicine room, where there is a bulletin board.
The hallway resumes its course about 5 feet to the right
of the original course; i.e., a person walking from the
front of the building toward the medicine room would
turn right at the bulletin board and walk several steps to
the right before continuing down the hallway.
I credit the testimony of Norris concerning this
matter, and I find that Hall did not notify Norris by ges-
ture or otherwise that she was leaving the building. The
chances that Hall and Norris would have seen each other
when Norris was at the sink would be remote since
Norris normally went there only briefly to wash her
hands. Therefore , also it is unlikely that Hall would have
seen Norris working with a medicine tray at the sink. If
Hall had obtained Norris' permission to leave, then it is
probable that Hall would have so informed Goldhaum at
a The foregoing findings concerning the January 28 incident are based
on the credited testimony of Burley Burely was still in the Company's
employ at the time of the present hearing and , as indicated, she was a
reluctant witness It is unlikely that she would knowingly testify falsely
against the Company Hall testified that she expressly asked Burley if she
would mind keeping an eye on her patients . This would be both unlikely
and unnecessary Hall and Burley had worked together for many years.
When Hall asked whether Burley would be on the second floor , because
she wanted to go out for a few minutes, Burley plainly understood that
Hall was asking Burley to watch her patients, and that by saying "all
right" and "okay," she was agreeing to do so . As the Company admitted
in a position letter to the Regional Director , such arrangements were
common among the aides
PARK MANOR NURSING HOME
her termination interview . However , neither Hall nor
any other witness claimed that she did so. Rather , as will
ibe discussed , Hall took the position that the Company
did not object to the fact that employees would some-
times go to the store without obtaining permission from
their supervisor.6
Hall testified that as she was walking away from the
building she saw Goldbaum and bookkeeper Rhodes also
leaving, but that they immediately turned around and re-
turned to the building. Goldbaum testified that he and
Rhodes left in order to take care of some errands, but
that when she saw Hall, he decided to return to the
building in order to find out if she had permission to
leave. Goldbaum was aware that Hall was scheduled to
be at a negotiating session the next day. Goldbaum and
Norris testified in sum that he found Norris at the medi-
cine room and asked her where Hall was. Norris an-
swered that she was taking care of her patients upstairs.
Goldbaum replied that he saw her going down the street,
and asked if she had permission to leave the building.
Norris answered that she did not. They testified that
nothing was said about whether she punched out. Gold-
baum testified that Rhodes, acting "on his own,"
checked Hall's timecard. According to Goldbaum, he
next went downstairs to the administrative office and
asked Nursing Director Edwards whether Hall had per-
mission to leave the building. Edwards answered that she
did not, and Goldbaum asked her to look into the matter.
However, Edwards testified that Goldbaum told her that
Hall had left without authorization , because Norris was
not aware of her absence and she had not punched her
timecard . Goldbaum again left the building, and returned
about 4 p.m. He testified in sum that he asked Edwards
whether she investigated the matter , that Edwards said
she spoke to Hall and Burley , that Hall did not deny
leaving the building without permission , and that Burley
reported literally her conversation with Hall before Hall
left. Goldbaum did not pursue the matter any further
that day.
Hall testified that, in early afternoon on 28 January,
Edwards summoned her to the office and told her that
the next time she left the building she should punch her
card. Hall initially testified that Edwards said nothing
about leaving without permission , but subsequently testi-
fied that she did not recall her saying anything about it.
Hall testified that shortly thereafter she asked Norris,
"Why didn't you tell me that you have to hit your card
when you leave the facility?" whereupon Norris an-
swered: "Child , I don 't know what's going on around
this place ." Edwards testified that she informed Hall that
Goldbaum reported that she was out of the building
6 Hall testified in sum that Goldbaum focused on the fact that she left
the premises without punching out, but she admitted that Goldbaum
asked her if she knew that employees were not to leave the facility with-
out permission , and that she did not deny that she left without permis-
sion The General Counsel contends (Tr 473, Br 15) that Hall accurately
indicated Norris was in the area of the medicine room when she left, and
this would support the veracity of the rest of her testimony However,
Hall had worked at the Home long enough to know Norris ' routine, and
was sufficiently familiar with the layout to know that she could not have
seen Norris if Norris were at the medicine room Therefore it does not
follow that Hall was truthful when she placed Norris at the sink, where
she might have been visible from the front hallway.
201
without permission , that Hall answered that she went to
the store , that Edwards told her that no employee was to
leave the facility without permission , whereupon Hall
shrugged . Secretary Brown, who was present in the
office, partially corroborated and partially contradicted
Edward's testimony in that she testified to the first part
of the conversation described by Edwards as being the
entire conversation . Norris testified that she could not re-
member Hall asking her about punching out. However,
aide Burley corroborated Hall's testimony in its most
crucial respect. Burley testified that she was present at a
conversation between Hall and Norris on the afternoon
of 28 January , in which Hall asked Norris, "When do we
have to start punching in and out to go to the store?"
'Burley testified that she did not know Norris' answer,
and that she did not hear anything said about leaving
without permission . As discussed , I find that testimony
by Burley, which is adverse to the Company's position,
is entitled to particular weight in this proceeding . There-
fore I credit Hall's testimony concerning her conversa-
tion with Norris. Consequently I also credit Hall's testi-
mony concerning her conversation with Edwards in this
regard, because it is evident that Hall would not have
asked Norris about punching out to go to the store
unless someone in authority had just told her that she
was required to do so. I find, however, that Edwards
probably prefaced her statement by telling her that she
was informed that Hall was out of the building without
permission. Edwards' conversation with Hall is signifi-
cant in several respects . First, it indicates that Goldbaum
was initially taking the position that Hall violated com-
pany rules by failing to punch out when she left the
building without permission. As will be discussed fur-
ther, although the Company later took the position that
it did not discharge Hall because of her failure to punch
out, the Company continued to emphasize her failure to
do so, both at the time of her discharge and at a meeting
with the employees the next day. Second , Edwards'
manner of speaking to Hall reflected her understanding
that she was simply admonishing Hall, and that she did
not contemplate further discipline, let alone discharge.
Therefore I do not credit Edwards' testimony that she
and Goldbaum arrived at a joint decision to terminate
Hall. Rather, the decision was solely that of Goldbaum,
for his own reasons. Third , by reason of these factors, to-
gether with other evidence which has been and will be
discussed , I find that Goldbaum realized that he would
be on weak ground if he attempted to justify Hall's dis-
charge on the premise that she violated a nonexistent
policy about punching out in order to go to the store,
and therefore shifted the emphasis to her failure to obtain
permission before leaving the facility.
The next day, 29 January, Goldbaum and Hall each
went to the scheduled negotiating session . Prior to the
session, Goldbaum called aside the Union 's officials and
attorney and told them that Hall left the facility without
permission and left the patients unattended (the latter as-
sertion being false), and that the Company regarded this
as a serious offense which warranted termination. The
Union asked Goldbaum to conduct a thorough investiga-
tion, and the parties then proceeded to the bargaining
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
table. The session lasted about 3 hours, and included an
argument involving the Union's assertions concerning a
salary increase to Goldbaum and fees paid by the Com-
pany to its attorney. Hall was present throughout the
session but did not participate in the discussion. After
Goldbaum returned to the Home, the Company conduct-
ed what might be loosely described as an investigation,
although in fact all the Company did was to obtain writ-
ten statements which confirmed part, but not all, of what
Goldbaum and Edwards already knew. They learned
nothing that they did not already know, and they made
no efforts to obtain any additional facts. Edwards,
Rhodes, and Norris each signed written statements and,
as testified to by Edwards, the decision to terminate Hall
was made on the afternoon of 29 January, and Edwards
proceeded to prepare the termination notice. The next
morning Edwards obtained a written statement from
Burley which consisted of nothing more than a literal
recitation of the conversation between Hall and Burley
on 28 January. The statement made no reference to the
facts that Burley understood she was being asked to
cover Hall's patients, that she agreed, and that she did
so. According to Edwards, she did not pursue these as-
pects of the matter, and she never learned that five of
Hall's patients were in the dining room at the time. On
the afternoon of 30 January Edwards summoned Hall to
the administrative office, where Goldbaum conducted
the termination interview. The next day Goldbaum as-
sembled the employees at a meeting. He told the employ-
ees and posted a notice to the effect that it "has been and
remains" company policy that no employees can leave
the facility without the expressed permission of his im-
mediate supervisor, and that the employee must punch
his timecard on leaving and returning to the facility.
Goldbaum told the employees that an employee was ter-
minated because she did not punch out and did not let
her supervisor know that she was going out. Aide
Martha Dixon asked when they started punching out,
and Goldbaum answered, falsely, that "it's been in effect
all the time."7
The Company, including Goldbaum in his testimony,
has throughout this proceeding taken shifting positions
concerning the reason or reasons for Hall's discharge,
with the only constant factor being that the Company
has always included in such reasons that Hall left the
premises without the express permission of her supervi-
sor. Goldbaum initially testified that "I fired Mrs. Hall
because there was nobody taking care of her patients,
and she left the building without permission." However,
Goldbaum subsequently admitted that Burley assumed
the responsibility for caring for Hall's patients. Gold-
baum insisted that Hall did not ask Burley to watch her
patients. As indicated, Burley credibly testified other-
wise. Burley further testified that Goldbaum knew the
established practice that if Burley were on the second
floor she would be watching Hall's patients. Indeed,
° I credit Dixon's testimony concerning Goldbaum's statements at the
meeting I have no reason to question her credibility. She was still in the
Company's employ at the time of the present hearing, and therefore her
testimony is entitled to the special weight Goldbaum, in his testimony,
did not deny that he told the employees that hall was discharged in part
because she failed to punch out and in.
Goldbaum found it unnecessary to specifically ask
Burley whether she watched Hall's patients. Goldbaum
admitted that when Hall asked Burley whether she was
going to be on the floor, Burley understood that this
meant that Burley had to take care of Hall's patients.
Thus the Company stated in its position letter that, when
Hall told Burley that she was leaving, "this left Burley
with a double complement of residents for whom to
care," which is "not unusual."
In its position letter, the Company stated that Hall was
discharged because of "the seriousness of [her] offense,
her admission that she left without permission, and her
complete lack of contrition and remorse." Goldbaum tes-
tified at one point that if Hall had not been so "snippish
and short" at the termination interview, he probably
would not have fired her. However, Goldbaum immedi-
ately backed away from this dangerous admission, assert-
ing that "the seriousness of the offense would have been
enough." Goldbaum subsequently testified that Hall's at-
titude played no part in his decision to terminate her, and
thereby contradicted the position taken by the Company
in its position letter. As indicated, Goldbaum had already
decided to terminate Hall, and therefore her attitude at
the termination interview could not have been a factor in
the termination, unless Edwards' testimony was false.
Moreover, a careful examination of the substance of the
termination interview, and in particular the testimony of
Goldbaum, Edwards, and Brown, indicates that Hall was
courteous and cooperative, that she gave up trying to
state her position when it became apparent that Gold-
baum was simply setting her up for a discharge, and that
absent a discriminatory motive, Hall's conduct at the ter-
mination interview would not likely have given an em-
ployer reason for disapproval. Goldbaum began the
interview by asking Hall whether she had permission to
leave the facility. Hall answered that she did not. Gold-
baum then asked Hall whether she knew that no employ-
ee was to leave the facility without the permission of his
or her supervisor. Hall answered that she was, but that
on prior occasions Goldbaum and Edwards saw her
leave the facility but said nothing. It is evident that Hall
was trying to explain that while the Company nominally
followed a policy of requiring supervisory permission for
an employee to leave the premises, the Company did not
uniformly enforce such a policy. However, Goldbaum,
who was bent on setting up Hall for a discharge, was not
interested in hearing any explanations. Therefore he ig-
nored Hall's answer and again asked Hall whether she
knew she needed permission to leave the facility. Hall,
who had already given her answer, told Goldbaum that
she was listening. Goldbaum, still not satisfied, asked
whether Edwards had informed the employees through
in-service meetings that they were not to leave the facili-
ty without permission. Hall asked, "What meeting?
Where is it posted?" In fact, as will be discussed, there
was never such a meeting or posting. Instead of answer-
ing Hall's question, Goldbaum told her that this was a
serious matter, that it was a terminal offense to leave the
PARK MANOR NURSING HOME
facility without permission and without clocking out and
back in, and that her services were no longer needed.8
As an adverse witness for the General Counsel, Gold-
baum testified that Hall was discharged in part because
she failed to punch out. However, as a company witness
Goldbaum testified that he would not have discharged
Hall if she had obtained permission to leave but failed to
clock out. In fact, the Company never had a general
policy or practice which required employees to punch
out when they went to the store. The General Counsel
presented in evidence Park Hill's personnel policy
manual, which was also used by the Blancaflor manage-
ment. The General Counsel also presented in evidence a
personnel policy manual which, according to Goldbaum,
he put in effect after he took over the Home. In fact, the
employees were unaware of the existence of this manual.
Al'lthough both manuals contain detailed rules governing
employee behavior, neither manual even suggests that
employees must punch out when they leave the premises
for brief periods of time. Beginning in 1983, the house-
keeping supervisor required porters to punch out when
they went to the store, because they were taking too
long on such errands. However, no such requirement
was ever imposed on the aides before Hall's discharge.
Charge Nurse Norris testified that she was unaware of
such a requirement, as did aides Burley, Dixon, Averett,
and Hall, and former Activity Coordinator and Supervi-
sor Rose McDavid. If Norris was unaware of such a re-
quirement, then plainly no requirement existed for the
aides. Secretary Brown testified that there was such a
rule, but that she did not punch out to go to the store
until after Hall's discharge. Nursing Director Edwards
testified that there was such a rule, but that it was not
always enforced. This was, to put it mildly, an under-
statement. Goldbaum admitted that employee timecard
records indicate that during the months of December
and January there were no instances when employees
punched out and back in again during their work shift.
During the month immediately following Hall's dis-
charge, however, there were '25 such instances. Prior to
Hall's discharge, no employee was ever disciplined for
failing lo punch out before going to the store. In light of
the foregoing evidence, Goldbaum's assertions that em-
s The foregoing findings concerning the termination interview are
based on a composite of the testimony of Hall, Goldbaum, Edwards, and
Brown, and of Brown's notes I am not persuaded that any of the wit-
nesses have a complete account of the meeting Hall, in her direct testi-
mony, indicated that Goldbaum spoke only about her failure to punch
the clock In light of the testimony of the other witnesses, and the lan-
guage of the termination notice, this is unlikely However, Goldbaum,
contrary to the testimony of the other company witnesses, admitted that
he mentioned Hall's failure to punch the clock In light of this admission,
the references to this matter, and the Company's alleged policy in the ter-
mination notice, and the statements made by Goldbaum at the meeting
the next day, I credit Hall's testimony to the extent that I find that Gold-
baum told Hall that she was terminated in part because of her failure to
punch the clock Edwards' testimony is particularly significant, in that
she indicated that Goldbaum repeatedly asked Hall whether she knew
she needed permission to leave the building, although Hall had already
answered the question Edwards professed inability to explain why Gold-
baum did this Indeed, all three company witnesses admitted that Gold-
baum repeated the question after Hall gave her answer Brown's notes,
while helpful, are incomplete, as Brown herself admitted in her testimo-
ny. Thus, Brown's notes fail to indicate that Goldbaum referred to in-
service meetings, which prompted Hall to ask, "What meeting?"
203
ployees were always required to punch out if they left
the building for any reasons, that Hall violated this rule,
and that this violation was a contributing factor in her
discharge were made out of whole cloth, and simply
constituted an attempt to conceal the real reason for her
discharge.
In sum, of the four reasons advanced by the Company
at one time or another for Hall's discharge, two (leaving
patients unattended and bad attitude at the termination
interview) lacked any basis in fact, one (failure to punch
out) lacked any basis in company policy or practice, and
Goldbaum so understood at the time he discharged Hall.
This leaves the Company's remaining assertion that Hall
was discharged in whole or in part (depending on which
version one accepts) because she failed to obtain the per-
mission of her supervisor before leaving the premises. I
find that Hall failed to follow accepted Home practice
when she left without notifying Norris or Edwards.
However, in light of the evidence, including the testimo-
ny of witnesses for both sides, I find that the Company
followed this practice in a loose and flexible manner, that
until January 28, the Company would not have regarded
Hall's action as grounds for discipline, let alone dis-
charge, and that Hall's discharge on this asserted ground
was demonstrably pretextual.
The testimony of witnesses for both sides, including
Norris, indicates that aides, like other employees, fre-
quently left the facility to go to the store, and that super-
visors were not only aware of this practice, but some-
times asked the employees to make purchases for them.
The testimony of the witnesses, including Hall, indicates
that in such situations the aide is expected to get another
aid to cover her patients and, if possible, to notify her
supervisor that she is leaving the premises. However,
aides Hall, Dixon, and Averett testified in sum that, if
the aide could not locate her supervisor, she would nev-
ertheless go to the store if she had gotten another aide to
cover her patients, and that the Company tolerated this
practice.9 Dixon specifically testified about an instance in
January 1985 in which she could not locate Norris. She
told another aide she was leaving, went to the store, and
on her return, saw Norris, who asked her why she did
not say she was going because Norris wanted something
at the store. Dixon said she could not find Norris, and
nothing more was said about the matter, Norris, in her
testimony, denied having this conversation. As indicated,
Dixon, like Averett, was in the Company's employ at the
time of the present hearing, and I have no reason to
question her credibility. I credit Dixon, and I find that
the incident illustrative of the Company's actual practice
under nondiscriminatory circumstances. lo Even Nursing
s Burley, the only other aide who was presented as a witness in this
proceeding, testified that she did not make a practice of going to the
store and therefore was not familiar with the procedure in this regard
10 During the course of company counsel 's investigation of the present
charge, Dixon signed a written statement in which she said that she never
left the Home without permission in the entire time that she worked at
the Home Although company counsel gave her appropriate assurances
against reprisal, Dixon was aware of the Company's asserted reasons for
discharging Emily Hall, and consequently had strong motivation for re-
fraining from any admission to a company representative that she had
Continued
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director Edwards, who claimed that aides were not per-
mitted to leave the patient care area, e.g., to take their
lunch or break in the cafeteria, without notifying a su-
pervisor, admitted that this alleged rule was not always
enforced, and that she had never given any discipline
greater than an oral , unrecorded warning for such infrac-
tions. As indicated, Edwards anticipated that Hail would
not receive any greater discipline in the present situation.
In the present case, the credited evidence fails to indi-
cate that Hall tried to locate Norris or Edwards to let
them know that she was going to the store. Even assum-
ing, however, that the Company's policy was as tough in
practice as it purported to be on paper, the personnel
policy manuals which were presented in evidence indi-
cate that the Company would have regarded Hall's con-
duct as a minor offense which would warrant no greater
discipline than a written warning. The personnel manual
which was used by Park Hill and Blancaflor, including
the period when Goldbaum was Blancaflor's administra-
tor, listed three categories of offenses which warranted
disciplinary action. The first category, which included
"leaving your department or assigned work area without
permission of the supervisor," provided for verbal warn-
ing for the first offense, written warning for the second
offense, suspension without pay for the third offense, and
termination for the fourth offense. The second category,
which included "leaving the premises during working
hours without permission of your supervisor," provided
for written warning for the first offense, suspension for
the second offense, and termination for the third offense.
None of the other listed offenses were relevant to the
present company disciplinary policy, and they were
never informed otherwise. Hall had never been given
any discipline prior to 28 January. Therefore under the
outstanding progressive disciplinary policy which had
never been rescinded, the present situation would have
been regarded as a first offense which warranted an oral
or written warning.' i Assuming that the second manual,
whose contents were unknown to the employees, reflect-
ed current company policy, the Company would fare no
better. This manual lists under the heading of "minor of-
fenses" the offense of "unexcused absence," and under
the heading of "Dereliction of duty," five offenses in-
cluding "absence from assigned area" and "unauthorized
absences." These offenses are subject to progressive dis-
cipline which includes an oral or written reprimand or
warning for the first offense and suspension or discharge
ever left the Home without permission Dixon never testified that the
statement was true I find it more likely that her statement, rather than
her testimony, was false. The Company further argues (Br 46) that "even
if Dixon had been telling the truth as far as Norris knew, Dixon
could have told Edwards she was leaving." However, Norris did not
bother to ask whether Dixon had permission In contrast, when Gold-
baum saw Hall leaving the building, he immediately launched an investi-
gation of the matter
i i In his testimony, Goldbaum suggested that this should not be re-
garded as a first offense because Hall admitted that she previously went
to the store without obtaining permission from her supervisor. There are
at least two fallacies in this theory. First, Goldbaum had already decided
to terminate Hall, and Edwards wrote up the termination notice before
they heard what Hall had to say Second, Hall stated that in the prior
instances Godlbaum or Edwards saw her but said nothing Therefore
they sanctioned her leaving the premises, and her conduct could not be
regarded as an offense
for the third offense. The manual further provides that
"minor offenses can also be considered major offenses,
depending on the severity." The manual also list "serious
offenses," subject to suspension or discharge for the first
offense, and provides that: "The Administrator must de-
termine the nature and severity of the offense." None of
the listed offenses would be pertient to the present situa-
tion. However, in another section the manual states that
an employee "may be discharged immediately" for 16
listed offenses, including "leaves work assignment before
end of shift without permission," and some other offenses
which are also listed under the heading of serious of-
fenses. In the present case, the Company contends that
Hall was discharged for violating this rule, i.e., "leaves
work assignment before end of shift without permission."
This is an obvious distortion of the provisions of the pur-
ported manual. The termination notice expressly states,
"If anything had happened to you [sic] in your absence,
you were on unauthorized absence," i.e., a minor offense
under the manual. Goldbaum testified that "unauthorized
absence" means not showing up for work, and that "un-
excused absence" means that the employee has a reason
for being absent but the absence was nevertheless not ex-
cused. This explanation makes no sense, because the
latter situation would be covered by the offense of "ex-
cessive absenteeism," under which "Excessive is defined
as above allotted sick time and/or authorized sick leave."
Goldbaum was unable to explain why "unauthorized ab-
sences" by his definition would be included in a list of
one-the-job offenses under the heading of "Dereliction of
duty." It is evident from the wording, and the overall
context of the offense on which Goldbaum allegedly
relied, that "leaves work assignment before end of shift
without permission" means leaving for the day without
completing the employee's shift, and therefore had noth-
ing to do with the present situation. Rather, it is evident
that Hall's action constituted an absence from the as-
signed area or unauthorized absence, i.e., a minor offense
which did not warrant discharge. Moreover, in light of
the fact that both Park Hill and Blancaflor defined the
conduct in question as a lesser offense, it is unlikely that
Goldbaum would have drastically altered the penalty for
a first offense without informing the employees. Howev-
er, he did not do so until after he discharged Hall.
There are aditional factors which tend to indicate the
pretextural nature of Hall's discharge. Even if Hall's con-
duct could be regarded as a serious offense, the manual
on which Goldbaum purportedly relied expressly provid-
ed that the "Administrator' must determine the nature
and severity of the offense." Here, all the circumstances
were mitigating in nature , but Goldbaum chose to ignore
and even falsify those circumstances, as he did in the ter-
mination notice. Goldbaum chose to disregard the facts
that Hall asked Burley to cover, her patients, that Burley
so understood and agreed, that Burley covered Hall's pa-
tients, that at the time, 5 of Hall's patients were in the
dining room, and Burley, who was then on the second
floor, had to cover a total of 10 or fewer patients in
Hall's absence, that Hall, who rarely left her work area
during breaks, used her break to go to the store, that she
was gone only 8 to 10 minutes (less than her breaktime),
PARK MANOR NURSING HOME
that she went for a necessary reason, and that no prob-
lems occurred during her brief absence. Edward's asser-
tion that Hall's patients were "left in jeopardy" was bla-
tantly false. The patients were in no greater jeopardy
than they would be when any aide left for lunch or to
take an authorized break. Goldbaum also chose to disre-
gard the facts that Hall had worked at the Home as an
aide for 19 years, had at least a satisfactory record, and
had never been given a warning notice or other discipli-
nary action for any reason. Indeed, there is credible evi-
dence that Hall was a better-than-average employee.
Aide Burley testified that Hall rarely left her work area
to take her breaks. 12 Rose McDavid, who was an activi-
ty coordinator at the Home (a supervisory position) from
August 1982 until 7 January 1984, and worked in close
proximity to Hall, testified that Hall was very conscien-
tious, dedicated to her patients, and was a "team player"
who would help McDavid with activities. McDavid fur-
ther testified that Hall was spoken of favorably at super-
visory meetings and by patients.13 Goldbaum's efforts on
the witness stand, to paint as bleak a picture as possible
of Hall's record, were incredible and in part particularly
significant with respect to the merits of this case. Gold-
baum testified that Hall was a "marginal" employee with
a poor attendance record, who was "never a team
player," never volunteered to help, let others do things
for her, was always by herself, and did not contribute to
the concept of patient care. Hall worked under Gold-
baum when he was Blancailor's administrator, and he
had access to her personnel file as an employee of Park
Hill and Blancaflor, as well as the opinions of Edwards,
Norris, and McDavid. If Hall were as bad an employee
as Goldbaum now claims, then it is unlikely that he
would have hired her when he took over ownership of
the Home. However he did, and he admitted that he
never spoke to her about these alleged deficiencies. He
was unable to give any specific example of them. Gold-
baum testified that he was sure that Edwards spoke to
Hall about these deficiencies, although he subsequently
admitted that he did not know if Edwards spoke to her.
Edwards, who equivocally described Hall as a "fair"
employee, without explaining what he meant, never
claimed that she spoke to Hall about any alleged defi-
ciencies, and failed to contradict the testimony of Hall,
Burley, and McDavid to the effect that Hall was a well-
regarded employee who was never given a warning or
other discipline. Goldbaum's testimony concerning Hall's
allegedly poor attendance was contradicted by the Com-
pany's own records. The Blancaflor personnel manual
stated that an employee who averages one unexcused ab-
sence per month will be viewed as undependable, and
that an employee with a poor absentee record for a 3-
12 At this point Burley was not being questioned about Hail's overall
performance Her testimony came in the form of a spontaneous explana-
tion, and plainly carried the ring of truth, based on Burley's own obser-
vation of Hall's day-to-day performance.
13 McDavid resigned her position in January 1984 and subsequently
filed charges against the Company with the Maryland Human Rights
Commission, which charges were eventually dismissed In these circum-
stances, McDavid's testimony is not entitled to the same weight as that of
a current employee. However, McDavid's testimony was consistent with
other evidence, uncontradicted, or as will be discussed, contradicted only
in a generalized or demonstrably incredible manner
205
month period must be interviewed. The latter manual
contains no other definition of excessive absenteeism.
Goldbaum testified that Hall's personnel file indicated
that Hall was absent about eight times during 1984, and
that at least four or five of the asbences were excused on
presentation of a doctor's certificate. Therefore, when
measured by the only standard which has been indicated
in the present record, Hall's attendance record was satis-
factory. The only evidence that Hall was not a "team
player" consisted of her refusal to cooperate with Gold-
baum by concealing his involvement in the decertifica-
tion petition. I find that this is what Goldbaum had in
mind. Finally, the pretextual nature of Hall's discharge
was demonstrated by Goldbaum's own unusual behavior
on 28 January. When he saw Hall leaving the facility, he
did not, as might be expected, ask her where she was
going. Instead, he immediately returned to the facility
and proceeded to build a case against her. Goldbaum tes-
tified that often upon seeing an employee leave the facili-
ty, he would check with Norris, Edwards, or another su-
pervisor to find if the employee had permission to leave.
Goldbaum was unable to provide the names of any such
employees. Norris testified, however, that Goldbaum
never made such an inquiry to her. (Edwards initially
corroborated Goldbaum's testimony, but subsequently
testified only that this "possibly" happened.)
I find that the Company discharged Hall because she
cooperated in the investigation of the Union's charge in
Case 5-CA-16689, and because she demonstrated her re-
newed adherence to the Union by becoming a member
of its negotiating committee . When Goldbaum learned
that Hall informed the Regional Office that he was re-
sponsible for the revocation petition, thereby thwarting
his plan to withdraw recognition from the Union, he re-
solved, as he informed Burley, to retaliate against Hall.
In Goldbaum's view, Hall compounded the offense by
resuming her role as a union representative. Therefore
Goldbaum seized on the first available opportunity to
discharge Hall for an assortment of pretextual or false
reasons. Goldbaum initially relied upon Hall's failure to
punch out when she went to the store, but when he real-
ized that it would be impossible to prove that the Com-
pany had any policy or practice in this regard, he shifted
the emphasis to her failure to obtain supervisory permis-
sion before leaving the building.14 Goldbaum discharged
a longtime and valued employee, advancing a reason
which under nondiscriminatory circumstances would
probably have been disregarded, or at most, the subject
of a reprimand. The Company thereby violated Section
8(a)(1), (3), and (4) of the Act. See, with respect to the
8(a)(4) violation, NLRB v. AA Electric Co., 405 U.S. 117
(1972).
14 A respondent's "inability to adhere with consistency to any explana-
tion for its action" in terminating an employee warrants an unfavorable
inference against that respondent Zurn Industries, 255 NLRB 632, 635
(1981), enfd 680 F 2d 683 (9th Or 1982), and cases cited therein, Steve
Aloe Ford, 179 NLRB 229, 230 (1969) In this regard the statements of an
attorney in the management of litigation are admissible against the client
Steve Aloe Ford, supra, 179 NLRB at fn. 2
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the Company has engaged in, and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminating in regard to the tenure of employ-
ment of Emily Hall, thereby discouraging membership in
the Union, the Company has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(3) of the Act.
5. By discharging Emily Hall because she gave testi-
mony under the Act, the Company has violated and is
violating Section 8(a)(4) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1), (3), and (4) of the Act, I shall
recommend that it be required to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company discriminatorily ter-
minated Emily Hall, I recommend that the Company be
ordered to offer her immediate and full reinstatement to
her former job or, if it no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make her whole for any
loss of earnings and benefits that she may have suffered
from the time of her discharge to the date of the Compa-
ny's offer of reinstatement. I shall further recommend
that the Company be ordered to expunge from its
records any reference to the unlawful discharge of Emily
Hall, to give written notice of such expunction to Hall,
and to inform her that its unlawful conduct will not be
used as a basis for further personnel actions against her.
See Sterling Sugars, 261 NLRB 472 (1982). Backpay shall
be computed in accordance with the formula approved
in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est computed in the manner and amount prescribed in
Florida Steel Corp., 231 NLRB 651 (1977).15 It will also
be recommended that the Company be required to pre-
serve and make available to the Board, or its agents, on
request, payroll and other records to facilitate the com-
putation of backpay due.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'6
15 See generally Psis Plumbing Co, 138 NLRB 716, 717-721 (1962).
16 If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ORDER
The Respondent, Park Manor Nursing Home, Inc.,
Baltimore, Maryland, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in Hospital Employees
Local 1273, Laborers' District Council, Laborers' Inter-
national Union of North America, AFL-CIO, or any
other labor organization, by discriminatorily terminating
employees, or in any other manner discriminating against
them with regard to their hire or tenure of employment
or any term or condition of employment.
(b) Discharging or otherwise discriminating against
employees because they file charges or give testimony
under the National Labor Relations Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Offer Emily Hall immediate and full reinstatement
to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed and make her whole for any losses she suffered by
reason of the discrimination against her as set forth in the
section of this decision entitled "The Remedy."
(b) Remove from its files any reference to the dis-
charge of Emily Hall, and notify her in writing that this
has been done and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel
actions against her.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Baltimore, Maryland place of business
copies of the attached notice marked "Appendix." i 7
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent 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 Re-
spondent has taken to comply.
i If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order 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 "
PARK MANOR NURSING HOME 207
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.
WE WILL NOT discourage membership in Hospital Em-
ployees Local 1273, Laborers ' District Council, Labor-
ers' International Union of North America, AFL-CIO,
or any other labor organization , by discriminatorily ter-
minating employees , or in any other manner discriminat-
ing against you with regard to your hire or tenure of em-
ployment or any term or condition of employment.
WE WILL NOT discharge or otherwise discriminate
against employees because they file charges or give testi-
mony under the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your right
to engage in union or concerted activities, or to refrain
therefrom.
WE WILL offer Emily Hall immediate and full rein-
statement to her former job or, if such job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously enjoyed and make her whole for losses she suf-
fered by reason of the discrimination against her, with in-
terest.
WE WILL remove from our files any reference to the
discharge of Emily Hall, and notify her in writing that
this has been done and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel
actions against her.
PARK MANOR NURSING HOME, INC.