Puerto Rican Family Institute

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 929 (N.L.R.B. 1993)

929
311 NLRB No. 90
PUERTO RICAN FAMILY INSTITUTE
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 filed
with respect to the judge’s 8(a)(1) findings.
2 Member Raudabaugh finds it unnecessary to rely on evidence of
disparate treatment to find that the discharges of probationary em-
ployees Lillian Lafont, Avery Smith, and Mervis Lewis were unlaw-
ful. In this regard, he notes that the employees to whom these three
were compared were not probationary employees. However, Member
Raudabaugh agrees that other evidence relied on by the judge estab-
lishes the violations as to these three employees.
1 Certain errors in the transcript were noted and corrected.
2 Medley has a nursing home administrator’s license; the regula-
tions for nursing homes and intermediate care facilities are identical.
3 Direct care workers help clients with all the activities of daily
living.
Puerto Rican Family Institute, Inc. and Local 144,
Hotel, Hospital, Nursing Home & Allied Serv-
ices, SEIU, AFL–CIO and Lucy Diaz. Cases 2–
CA–25084, 2–CA–25126, and 2–CA–25579
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On November 9, 1992, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed a brief in support of the ad-
ministrative law judge.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Puerto Rican Family Insti-
tute, Inc., New York, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Margit Reiner, Esq., for the General Counsel.
Harris L. Present, Esq., of New York, New York, for the
Respondent.
Ivan D. Smith, Esq. (Vladeck, Waldman, Elias & Engelhard),
of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on 7 days between
February 18 and March 27, 1992. The complaint alleges that
Respondent, in violation of Section 8(a)(1) and (3) of the
Act, interrogated its employees, instructed its employees to
report union activities and not to engage in union activities,
discharged its employees Avery Smith, Lillian Lafont, and
Mervis Lewis, and gave an unsatisfactory evaluation to its
employee Lucy Diaz and placed Diaz on probation. Respond-
ent denies the material allegations of the complaint.
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 the Respondent in May
1992, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent a New York corporation, with its principal of-
fice in New York, New York, is engaged in the provision
of social care services. 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. Background
In January 1991, the Union commenced an organizational
campaign and on March 27, 1991, the Union filed a rep-
resentation petition with the Board in Case 2–RC–21016 re-
questing certification to represent certain of Respondent’s
employees including nonprofessionals employed at inter-
mediate care facilities. An intermediate care facility (ICF) is
a residence that cares for profoundly developmentally dis-
abled individuals. The Respondent operates three ICF resi-
dences. The election was conducted on May 1, 1991; the
Union did not receive a majority of the votes cast. On Octo-
ber 15, 1991, the Board issued a decision setting aside the
election based on the Union’s objection and a Direction of
Second Election.
The executive director of Respondent is Maria Elena
Girone. Her assistant executive director is Elvira Gonzalez.
In November 1990, Lynne Medley was hired as program di-
rector with responsibility for the day-to-day operation of the
three ICFs.2 Medley was particularly charged with improving
the operation of ICF 1 at Laconia Avenue in the Bronx,
which had been placed under sanctions by the New York
State regulatory authorities and was threatened with removal
of its operating license and subsequent closure if conditions
did not improve. Medley reports to both Girone and Gon-
zalez: she supervises the residence managers and assistant
residence managers at each ICF as well as the direct care
workers and professional clinical consultants employed at the
facilities.3 The power to hire and fire employees rests with
Girone or with Gonzalez acting as her delegee. Medley rec-
ommends termination and discipline to Girone in appropriate
cases.
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Medley testified that she became aware of union activity
among Respondent’s employees in late February or early
March 1991. Medley, who has an office at all three ICF lo-
cations, noticed that there was ‘‘strange activity,’’ that peo-
ple stopped talking when she appeared and that employees
were wearing union insignia. Medley informed Gonzalez of
her observations. Medley admitted that she questioned a
number of employees about union activity, as will be de-
scribed below.
According to Gonzalez, when Medley had alerted her that
there was union activity going on at the facility, Medley
mentioned disappearing files, people calling in sick and ‘‘dis-
ruptive behavior.’’ Gonzalez noted that only the employees
at ICF 1 supported the Union by wearing union hats and but-
tons. Gonzalez made preelection speeches at the ICF facili-
ties where she informed the employees of some disadvan-
tages of voting for the Union. According to Gonzalez, Re-
spondent did not want the Union to win the election. Gon-
zalez was aware that employees Lillian Lafont and Avery
Smith, both of whom had just been discharged, were active
in behalf of the Union, but she denied that employees asked
questions about the discharges of Lafont and Smith at the
preelection meetings. Based on the testimony of employee
Lucy Diaz, whom I find to be an especially convincing wit-
ness, I find that at the preelection meeting, Gonzalez told the
assembled employees that if they thought the Union would
be able to achieve the reinstatement of Smith and Lafont
they were wrong: union or no union, these two would not
be reinstated.
The various letters detailing the deficiencies cited by the
State in the imposition of sanctions upon ICF 1 relate to
shortcomings in such areas as providing in service training
to staff, developing treatment plans for individual clients,
providing adequate clothing and supplies for clients, properly
assessing clients’ needs, providing adequate stocks of food
for the facility, providing adequate heat and providing repair
and maintenance of the facility. Most of the deficiencies are
due to a failure of management and of the professional con-
sulting staff to perform a task which is their obligation; only
a very small percentage of the deficiencies related to failures
of direct care workers to perform their duties. Even so, when
Girone wrote to the New York State regulatory agency on
August 7, 1991, enclosing a ‘‘Corrective Action Plan’’ to ad-
dress the deficiencies found by the State at ICF 1, she stated:
[W]e have displayed tremendous efforts in bringing
this facility into compliance after a most difficult year
of staff changes and disruptions caused by Union ac-
tivities. This site in particular has been severely af-
fected.
Medley testified that Respondent employs a disciplinary
system that is oriented to ‘‘problem solving.’’ Respondent
tries as much as possible to ‘‘work with’’ employees, using
progressive discipline, and stringent actions are used as a last
resort. According to Medley, no employee should be sur-
prised by a negative evaluation.
Respondent maintains employee personnel files. As var-
ious witnesses were called to testify in the instant hearing,
it became evident that employees were not given copies of
all the documents placed in their personnel files. Indeed, it
is not clear what documents were actually in the files: al-
though counsel for the General Counsel subpoenaed certain
personnel files, I became convinced as the evidence devel-
oped, that Respondent did not provide all the material in the
files in response to the subpoena. Further, it was obvious that
some material was supplied to General Counsel that had not
actually been in the files. This material had been placed in
the personnel files to make them seem complete after the
subpoena had been served. Medley testified that the per-
sonnel files contained notes that she and other supervisors
made concerning individual employees. Although Medley
stated that employees have the opportunity to see what is
written about them, her further testimony shows that employ-
ees are not told that they may examine notes of conferences
or disciplinary meetings. Indeed, employees may not be
aware that such notes exist. From Medley’s testimony, I
reached the conclusion that Medley and other supervisors
often write notes about oral warnings or conferences with
employees and place these in the employees’ files without
any notice at all to the affected employees. Respondent does
not have a standard practice that employees must sign any
document relating to discipline that is placed in their files.
Further, certain records concerning purported medication
errors was shown to witnesses. It then became apparent that
the records were not the original records that had been ini-
tialled and filled in by the employees when the medication
was administered but that the documents produced at the
hearing had been written later. It was further revealed that
the original documents had been rewritten at management’s
direction to conform more closely to the requirements for
giving medication and keeping records. I formed the belief
after listening to the testimony of various witnesses that
record keeping is a very important part of Respondent’s com-
pliance with state regulations and that documents are often
prepared or rewritten so that they may be placed in the files
against the day when a state inspector will ask to see them.
It is clear to me that Respondent has a practice of making
its files look good; but I am convinced that material placed
in the files is often not accurate and that it may have been
written long after the relevant events occurred.
In summary, I find that I cannot fully rely on and accept
at face value any files produced by Respondent because the
complete file may not have been produced, because material
may have been added to the file for various purposes and be-
cause many of the papers in the file do not accurately reflect
when they were prepared or the events they purport to de-
scribe.
B. Alleged Violations of Section 8(a)(1) of the Act
Medley admitted that she asked Avery Smith, Toni
Vaughn and other employees about union activity.
Vaughn worked as a cook at ICF 1 until she resigned for
reasons of health. Respondent has repeatedly assured Vaughn
that she can return to her old position at any time. Vaughn
did not engage in any overt organizational activities at the
facility, and Respondent did not know that she had joined the
Union shortly before the election. Vaughn testified that she
first became aware of the Union in March 1991, when Med-
ley called Vaughn and employee Debra London into her of-
fice. Medley said that she wanted some information about
union activities; she asked for the truth and she stated that
if anything was going on she would like to know about it.
Medley instructed the two employees that she did not want
931PUERTO RICAN FAMILY INSTITUTE
any union activity to take place on the premises because it
would be detrimental to the clients. Both Vaughn and Lon-
don indicated that they had not heard about the Union at this
point. Then, Medley called in employee Avery Smith. In the
presence of Vaughn and London, Medley told Smith she did
not want any union activity taking place at the facility be-
cause it would not help the clients and would be a problem
for them. Medley also asked Smith if she knew anything
about the Union.
Smith testified essentially to the same effect. According to
Smith, Medley asked her if she knew of any union activities
and whether she was involved in such activities. When Smith
proclaimed herself a union supporter, Medley replied that she
did not care if Smith was for or against the Union, but that
she did not want union activities taking place in the facility
where employees were neglecting clients. Smith denied that
employees were neglecting clients and she told Medley that
clients were being cared for.
Although Medley admitted asking employees about their
union activities, when questioned by counsel for Respondent
whether she had ‘‘interrogated’’ employees, Medley denied
the allegation. Further, Medley denied instructing employees
to report concerning coworkers’ union activities. Medley tes-
tified that she ‘‘gave instructions for [employees] not to en-
gage in union activity during the regular course of their
working hours.’’ Counsel for Respondent then posed a lead-
ing question, asking Medley whether she said not to do it so
as to interfere with the clients, and Medley agreed that this
is what she had said. Since Medley did not give the phrase
of her own recollection but responded to a leading question,
I find that the versions testified to by Vaughn and Smith are
more reliable and I shall rely on their testimony.
Based on my discussion above, I find that Medley, the
highest ranking managerial person with whom the direct care
workers regularly came into contact and the manager with
day-to-day authority over the operations of the facility, called
London and Vaughn into her office and asked them whether
anything was going on with union activities. Medley said if
anything was going on she wanted the truth about it. She
also instructed them that they were not to engage in union
activities on the premises because such activity would be det-
rimental to the clients. Medley did not assure London and
Vaughn that they had any right to support the Union without
fear of reprisal nor did she tell them that they were free to
engage in union activities on their own time. Her instruction
was definite that such activities would be detrimental to the
clients. In response to Medley’s questions, both Vaughn and
London disclaimed any knowledge of the Union. Medley
then called Smith to the meeting and repeated her question
whether Smith was involved with the Union. After Smith ex-
pressed her support of the Union, Medley said she did not
care but that union activity could not take place in the facil-
ity where employees were neglecting the clients. Medley’s
statement that ‘‘she did not care’’ is meaningless in context:
if she really did not care she would not have sought the in-
formation. Further, Medley’s instruction to Smith pre-
supposed that if the employees were discussing the Union
they were necessarily neglecting the clients. Certainly, Smith
understood Medley to be making this point because Smith
felt compelled to deny that clients were neglected. By the to-
tality of her comments, Medley was thus conveying to the
employees that no union activity on Respondent’s premises
was to be permitted.
I find that Medley’s questions reasonably tended to coerce,
restrain and interfere with the employees’ Section 7 rights:
Medley was a high official of Respondent, she called a small
group of employees into her private office, she asked not
only whether union activity was taking place but also to be
informed of any that did take place and she told the employ-
ees not to engage in such activity on Respondent’s premises.
Finally, it is clear from Medley’s manner of questioning the
employees that she did not know any of the three to be open
adherents of the Union. I find that by asking the employees
about their own union activities and by asking them to report
on any union activity that did take place, Respondent vio-
lated Section 8(a)(1) of the Act. Rossmore House, 269
NLRB 1176, 1178 (1984), affd. 760 F.2d 1006 (9th Cir.
1985); Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964). Further,
Medley’s blanket instruction that no union activity could take
place at Respondent’s facility was unlawful. It is clear that
Respondent’s employees have breaktime during their shifts
and it is also clear that there are times when employees have
no clients for whom they are responsible because the clients
are attending programs outside the facility or sleeping. Med-
ley did not differentiate between off-duty time and working
time when she told the employees not to engage in union ac-
tivity at the facility. I find that Respondent violated Section
8(a)(1) of the Act when it instructed employees not to en-
gage in union activity at the Respondent’s facility. Our Way,
268 NLRB 394 (1983).
C. Discharge of Lillian Lafont
Lillian Lafont was hired as a direct care worker at ICF 1
in January 1991. During her preemployment interview with
Medley, Lafont informed Medley that because she was a sin-
gle parent she could only work the 11 p.m. to 8 a.m. shift;
at other times she had to be available to supervise her own
children. The interview form on which Medley wrote when
she met with Lafont duly noted that Lafont was available
only from 11 p.m. to 8 a.m.
After Lafont heard other employees of Respondent dis-
cussing the Union, she signed an authorization card on Feb-
ruary 11, 1991. Lafont, attended union meetings, spoke to
her coworkers about the Union and distributed blank author-
ization cards. At the end of February, Medley came to ICF
1 and spoke to the employees in the dining room. Medley
said she had heard that there was union activity; she said this
was not a problem as long as the activity did not interfere
with employees’ duties to the clients and that it did not take
place in the facility. In April 1991, Lafont attended a
preelection conference at the Regional Office; Gonzalez, who
was there on behalf of Respondent, said hello to Lafont and
the other employees. After this occasion, Lafont started
wearing a union hat and buttons and placed a union bumper
sticker on her car. She also gave out union literature from
time to time.
Lafont was ill and did not work on April 15 and 16, 1991.
The next 2 days were her regularly scheduled days off. On
April 19, a Friday, Lafont called Residence Manager Pearl
Hampton and said she would come to work that night and
that she would bring a doctor’s note. Hampton told Lafont
that her shift had been changed and that Lafont would have
to work from 2 to 11 p.m. on Monday and Tuesday. When
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Apparently, neither Medley nor Quinones was available to speak
to Lafont.
Lafont asked why this had happened, Hampton said she did
not know and that the request had come from Doris
Quinones, the residence manager of ICF 2 who was assisting
at ICF 1 in connection with the training of a new assistant
residence manager, Awilda Wright. According to Hampton,
Medley had approved the shift change. Lafont asked to speak
to Medley or Quinones and Hampton replied that she would
call Quinones and call Lafont back.4 That night when Lafont
reported to work, she saw that the posted schedule would
have required her to work days on Monday, Tuesday, and
Saturday; she had only two night shifts left. Lafont imme-
diately called Hampton at home and learned that Hampton
had spoken to neither Medley nor Quinones. The next day,
Lafont again spoke to Hampton who had not yet reached
Medley nor Quinones. Lafont said that Hampton was not
friendly on this occasion and that she herself was insistent
because she needed an answer to her concerns about the shift
change. On Sunday, Lafont again called Hampton, but the
latter had no answer for Lafont. At the end of Lafont’s shift
about 7:30 a.m. on Monday, Hampton called Lafont at the
residence. Hampton told Lafont to post a notice that there
would be a meeting at 10 a.m. that day and she informed
Lafont that she could meet with Medley right after the meet-
ing. Medley did not appear for the 10 a.m. meeting. Lafont
offered to call Medley herself, but Hampton told her not to
call since she could speak to Medley right after the staff
meeting. Lafont, who had been on duty since 11 p.m. the
night before, waited at the residence until 11 a.m. and then
went home. She was scheduled to be back on duty at 2 p.m.
that day. She called Medley about 12:30 p.m. and reminded
Medley that she had to be home with her children. She told
Medley that she had not been able to find a babysitter for
that afternoon. Medley told her to keep trying to find a sitter
and to call back before 1:30. Before that time, Lafont called
Medley again to say she could not find anyone to mind her
children and that she could not work that shift. Medley re-
plied that she had a business to run and that Lafont had to
make a choice. Lafont did not work Monday, but she found
a babysitter after that and she notified Respondent that she
would report to work on Tuesday, April 23. When Lafont
went to work on Tuesday, Quinones told her that she was
to meet with Medley on April 26, but she refused to tell
Lafont what subject matter was to be discussed.
On April 26, Lafont met with Medley and Hampton. Med-
ley told Lafont that she was disappointed in her. Lafont said
that she had been flexible and that she had found a babysitter
so that she could work the new schedule. Lafont asked why
her schedule had been changed. Medley replied that because
of staff vacations and training, an employee who was cer-
tified to administer medication to the clients was needed
from 2 to 11 p.m. and that Lafont was the only one avail-
able. Lafont replied that if she had known the reason for the
change she would not have been so insistent. Medley said
that Lafont had been rude and insubordinate: Lafont re-
sponded that she had been insistent but not insubordinate and
that she just wanted an answer to her question why her shift
had been changed. Medley concluded by saying that she
could not stand insubordination and that she was discharging
Lafont. Lafont asked Medley to reconsider but Medley said
her decision was final.
Lafont received a letter dated April 27, 1991, from Girone
which stated:
Your refusal to accept the change in schedule and
your response that the facility would be short staffed
every day that you remained on the schedule because
you would not come to work and instead would take
any day of sick leave, holiday or vacation due to you,
would place our clients at risk and the operation of the
residence in jeopardy. This threatened action constitutes
a charge of gross misconduct.
Lafont testified that, contrary to the assertion in the quoted
paragraph, she had never threatened that she would take days
off and leave the facility short staffed rather than work the
new schedule. At the meeting with Medley, Lafont said she
had made arrangements for a babysitter and that she could
work the scheduled shifts.
Pearl Hampton, who was the residence manager of ICF 1
from December 1990, until June 1991, when she was de-
moted to assistant residence manager of ICF 3, did not tes-
tify about any of her conversations with Lafont.
Medley testified that she recommended to Girone that
Lafont be discharged. Medley had instructed Hampton to
find an employee who was certified to give medication and
to schedule that employee for the 2 to 11 p.m. shift. Accord-
ing to Medley, Lafont was the only employee available aside
from Lucy Diaz who had 12 years’ seniority and would like-
ly have resigned had she been assigned to the 2 p.m. shift.
Medley stated that Lafont missed 1 day of work before she
was able to find a babysitter, but that thereafter she was
‘‘quite accommodating in reference to the schedule change.’’
Medley stated that Lafont never told her that she would not
work the new shift hours.
Lafont’s personnel file contains certain documents upon
which Respondent apparently relies to sustain the discharge
in the face of the unfair labor practice charge. There are four
notes; Respondent claims that one was written by Hampton
and three by Medley. Hampton was not questioned at all by
counsel for Respondent concerning the incident with Lafont.
Counsel merely showed Hampton the note she allegedly
wrote. Hampton then stated that she had written that note as
well as one on the same page which was admittedly written
by Medley. Then counsel asked Hampton if the facts were
true and she replied, ‘‘yes.’’ Although Hampton testified that
she wrote one of the notes, I have carefully compared the
handwriting in the portion claimed by Hampton with the
many exemplars of Medley’s handwriting in evidence. I have
come to the conclusion that it is probable that Medley wrote
all of the notes and that Hampton did not write any of the
notes in Lafont’s file. Even if Hampton did write one of the
notes she claimed as hers, her willingness to testify that she
wrote another note which was actually written by Medley
shows that Hampton has trouble recognizing her own hand-
writing, that she did not carefully consider the questions
posed to her and that she answered carelessly. I find that
Hampton is not a reliable witness and that she apparently has
no recollection of any of the relevant events herein.
The first note in Lafont’s file, dated April 19, states that
Lafont said she would not work the new schedule and would
933PUERTO RICAN FAMILY INSTITUTE
5 Because Girone is the only manager with authority to fire em-
ployees, the discharges at issue herein must stand or fall based on
the reasons Girone, or her deputy, Gonzalez, cited in the letters of
termination. In view of Girone’s testimony that the three employees
were fired for the reasons given in those letters, I will not consider
any other reasons which may have been advanced at the hearing.
6 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
complain to the Labor Board about Respondent’s unfair labor
practices. In addition, the note states that Lafont would take
every day of holiday, vacation and sick leave and leave the
agency short staffed. The note does not identify to whom
Lafont was speaking during this exchange. As stated above,
Respondent claims that Hampton wrote this note. If the note
was written by Medley, as I believe, it is patent hearsay and
it should be disregarded on that ground. If Hampton did in-
deed write the note, her failure to testify about the incident
that led to Lafont’s discharge and her careless testimony
about the authorship of the various notes in Lafont’s file lead
me to conclude that Respondent was not willing to have
Hampton’s credibility tested on this point because she was
not reliable; on that ground, I would also disregard the note
dated April 19, 1991. Furthermore, Lafont denied ever mak-
ing any threat and no witness testified that Lafont did indeed
make the statement.
On April 22, Medley wrote a note to the file stating that
she had spoken to Lafont and told her the schedule had been
changed so that Lafont could administer medication and be-
cause ‘‘she is also very useful and helpful therefore she
would be most beneficial on this shift.’’ The third note to
the file states that Lafont called on April 22 to say she could
not work that day but that Lafont had worked the next day.
The note concludes, ‘‘Recommend termination for insubor-
dination.’’ The fourth note was written by Medley after the
interview at which Lafont was discharged. This note is inter-
esting only because it contradicts Medley’s sworn testimony:
Medley testified that Lafont was accommodating and agreed
to work the new shift hours, but Medley’s note to the file
says that Lafont was adamant about not accepting the change
in schedule. Further, the note to the file mentions matters
which Lafont denied were discussed with Medley and which
were not cited in Girone’s letter of discharge.5 This discrep-
ancy among many others leads me to conclude that Medley’s
notes to the files are not accurate and should not be relied
on.
Girone testified that Lafont was discharged for the reason
set forth in her discharge letter, namely, Lafont’s alleged re-
fusal to work the new schedule and her threat to take days
off instead. It is evident that there is no competent testimony
that Lafont refused to work the changed hours or threatened
to take days off. Lafont testified that she never made either
of these statements. Medley did not testify that Lafont made
these statements in her presence. Indeed, Medley testified
that Lafont was quite accommodating in accepting the sched-
ule change and arranging for a babysitter once it had been
explained that Lafont was the only employee certified to dis-
pense medication who could work from 2 to 11 p.m. Finally,
Hampton to whom these statements were allegedly made, did
not testify that Lafont made any of the threats attributed to
her.
Respondent’s antiunion animus is established by the
record. Gonzalez testified that Respondent opposed the
Union. Girone, Gonzalez and Medley all associated the
Union with ‘‘disruptive behavior.’’ In its correspondence
with the state regulatory agency, Respondent blamed its dif-
ficulties on the Union even though most of the citations dealt
with management and professional failures. As I have found
above, Respondent violated Section 8(a)(1) by interrogating
its employees and instructing them not to engage in union
activity. Respondent was well aware that Lafont was an ac-
tive supporter of the Union in view of her attendance at the
preelection conference and the fact that she wore union insig-
nia at work. I conclude that Respondent discharged Lafont
just 5 days before the election because she supported the
Union, and I find that Lafont’s alleged but unproven refusal
to work and threat to take days off was a pretext invented
by Respondent to mask its illegal motive.6 Thus, I find that
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Lafont.
D. Discharge of Avery Smith
Avery Smith was hired in December 1990, as a direct care
worker at ICF 1. In January 1991 employee Lucy Diaz told
Smith about the Union and gave Smith an authorization card.
Smith signed the card in February; she also attended union
meetings in February and March, and she distributed union
literature, caps, and buttons. As described above, when Med-
ley questioned her about her union activity, Smith acknowl-
edged that she belonged to the Union.
On Sunday, April 21, 1991, Smith was on duty when she
observed that one client was being annoyed by two others.
Smith sent one of the aggressors out of the area and tried
to calm the situation. One of the remaining clients hit and
punched Smith with his closed fist causing scratches, bruises
to her temple and eye and a sore neck. Smith called out for
help and employees Mervis Lewis and Myrna Sang came to
her assistance. After the three had succeeded in calming the
violent client, Smith called Medley, told her what had hap-
pened and asked to be relieved for the rest of the shift. Then
Smith called Residence Manager Pearl Hampton and Assist-
ant Residence Manager Awilda Wright in an effort to secure
coverage so that she could go home. In the event, no cov-
erage was provided and Smith worked until the end of her
shift. The next day, Smith woke in more pain than she had
experienced the prior day and she went to the doctor. After
Smith was treated and given medication, she was provided
with a doctor’s note for her employer. When Smith returned
home from seeing her doctor, she called the residence.
Wright answered the phone and Smith told her she would not
be in to work and then asked to speak to Quinones who was
training the newly hired Wright. Wright replied that
Quinones was busy and she asked Smith to tell her the prob-
lem. However, since Smith wanted to ask Quinones about the
procedure for taking more time off and about a possible
claim for Workers Compensation, she told Wright that she
would call back to speak with Quinones. Smith testified that
although she had spoken nicely to Wright, the latter slammed
the phone down. Smith then redialed the residence, told
Wright she wanted to speak to Quinones and asked Wright
why she had slammed the phone down, but Wright hung up
on her again. Smith phoned a third time and told Wright that
it was an emergency and that she wanted to ask about Work-
ers Compensation. This time Wright went to fetch
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Smith denied that at any point she yelled or cursed at Wright.
8 An examination of the various documents in Smith’s files does
not reveal that any instance of obscenity is cited. In these writings,
Smith is accused of saying that not one of the ‘‘goddamn people
care what happens’’ and that ‘‘no one gave a damn about her or the
rest of the staff and that she was tired of this shit.’’
Quinones.7 By now Smith was upset and crying; when
Quinones came on the line, Smith told her that management
did not care about the staff and she yelled at Quinones, but
she did not curse at her. Smith testified that she was upset
because she was in pain and no one from management, not
even Medley, had expressed any concern. No one seemed to
care how she was faring. Quinones hung up on Smith, and
Smith called her right back. Quinones told Smith that if she
stopped yelling, they could talk. Smith replied that she was
calm and she asked about Workers Compensation. Quinones
said that she did not know anything about that and she ad-
vised Smith to call Medley. Smith obtained Hampton’s num-
ber from Quinones and she called her, but Hampton did not
know anything about Workers Compensation. Smith denied
that she cursed or yelled at Hampton. Next, Smith called
Medley and told her what happened when she had called the
facility for information. Smith informed Medley of what she
had been told by her doctor and Medley instructed her to fill
out Workers Compensation papers. Smith testified that she
did not curse or yell at Medley. At the end of the conversa-
tion, Medley asked Smith to meet with her.
On April 26, 1991, Smith met with Medley and Hampton
in Medley’s office. Medley told Smith that she was termi-
nated based on the telephone conversations the day after
Smith was injured and based on write ups in her file about
an incident with the nurse, an incident with the psychologist
and medication errors. Smith later received a letter from
Girone stating that she was being terminated on the rec-
ommendation of Medley. The following reasons were given:
It is our understanding that you have been warned
repeatedly that your outburst and use of obscene lan-
guage when interacting with peers, supervisory per-
sonnel and consultants is not acceptable and in need of
immediate corrective action. Based on incidents re-
ported on 4/21/91 and 4/22/91 when you verbally
abused [Wright, Hampton and Quinones], it is apparent
that you have not made efforts to improve and/or mod-
ify your behavior which adversely impacts on the well
being of our clients and the smooth operation of the fa-
cility.
Your actions in the dates in question constitute gross
misconduct. Supervisory personnel is adamant about
their inability to continue working with you and be the
recipients of unprovoked insults and obscenities.
As noted above, Girone testified that employees were dis-
charged for the reasons set forth in their letters of discharge.
Therefore, it is clear that Respondent discharged Smith for
alleged outbursts, obscene language and insults. Respondent
produced a number of witnesses to support its position as to
Smith’s outbursts, language, and insults.
Hampton was called by Respondent. She testified that she
wrote a note dated April 23, 1991, in Smith’s file and that
she signed it. Counsel for Respondent asked Hampton wheth-
er the facts in the note were true and she answered ‘‘yes.’’
This was Hamptons’s entire testimony about the incident
with Smith. She did not state when she had prepared the
document. Doris Quinones was also asked by counsel for Re-
spondent whether she wrote a note about Smith dated April
23, 1991, and whether the facts were true: she answered
‘‘yes.’’ Quinones did not testify when she had written the
document. Quinones also identified two other notes in
Smith’s file as being in her handwriting. Awilda Wright
identified a note in her handwriting dated April 23, 1991, in
Smith’s personnel file. She testified that she signed it and
she answered in the affirmative when asked if the material
was true and correct. Wright did not say when she had pre-
pared the document. Wright stated that she had been an as-
sistant residence manager for 1 week when Smith called the
day after being beaten by a client. Wright, who was on a
leave of absence when she testified, acknowledged that she
had been given an unsatisfactory evaluation before she took
her leave of absence; she was criticized for having difficulty
supervising others and she was told that she must show im-
provement in interpersonal skills with the staff.
As described above, Smith testified in detail about the
events of April 23 and the days following it. She denied
cursing at management and, aside from an admitted loud out-
burst to Quinones, she denied yelling at the managers she
spoke to after she was injured. Smith described fully her
conversations with Hampton, Wright, Quinones, and Medley.
In contrast, Respondent’s witnesses merely identified docu-
ments in Smith’s personnel file. They did not testify at all
about their conversations with Smith. Further, even though
Respondent apparently places its entire reliance on the mate-
rial in Smith’s file for Respondent’s version of the events
leading up to her discharge, Respondent presented no evi-
dence about how these materials came to be prepared. There
is no evidence that the writings were made close to the
events they purport to describe. There is no evidence whether
the documents in the files were prepared from notes taken
when the conversations occurred. No witness testified wheth-
er the documents in the file were made of her own recollec-
tion or based on consultation with superiors or coworkers. In
short, for aught that appears on the record, the documents in
Smith’s personnel file may have been prepared many months
after Smith was discharged and may have been based on in-
structions from management in contemplation of the instant
hearing.
I have decided that Smith’s testimony about her injuries
and the conversations following it should be credited as
against the written documents in her personnel file which
were not supported by direct testimony concerning the events
at issue. Smith’s account is plausible; she was beaten on the
job and as she tried to get attention and information from
Respondent’s managers she formed the impression that no
one was concerned about her injuries. After a few phone
calls, Smith became agitated and yelled at Quinones. But
Smith denied cursing, and I credit her. Her live testimony
and my opportunity to observe her demeanor are a much
stronger basis on which to base a finding of fact than mere
documents whose authors do not testify about their recollec-
tions of the events.8
The letter discharging Smith refers to prior warnings given
to Smith and her inability to correct obscene language, in-
935PUERTO RICAN FAMILY INSTITUTE
sults and outbursts to supervisors and peers. Medley testified
that Smith’s file does not contain any complaints about her
interactions with peers. Smith described an incident with a
male coworker who had a habit of harassing female employ-
ees; she complained to Medley about this and both Hampton
and Medley acknowledged that they had heard other com-
plaints about the man. Smith also described two incidents in-
volving professional consultants to the facility. One day,
while Nurse Doris Figueroa was conducting an in service
training session, she accused Smith of laughing during the
lecture. Smith explained that someone else had laughed.
Figueroa testified that when she asked Smith why she was
laughing, Smith denied that she had done it and asked if
Figueroa were paranoid. Figueroa found this retort dis-
respectful and she reported it orally to Medley. Medley
spoke to Smith about the incident. According to Smith, Med-
ley did not give her a written warning about the incident.
Smith’s file does contain a ‘‘conference form’’ written by
Medley after she spoke to Smith about this incident. Medley
did not testify how long it was after the conference with
Smith took place that she completed the form nor did Med-
ley testify about her conversation with Smith concerning the
incident with Figueroa. As I have stated above, a memo-
randum placed in an employee’s file is no substitute for live
testimony about an incident, especially when there are no de-
tails about how or when the memo was prepared and the
memo contradicts the testimony of the employee about the
conference. Smith also testified about an incident with Dr.
Heriberto Cerpa, a clinical psychologist who was conducting
an in service training course for direct care workers. Accord-
ing to Smith, she was completing certain records required by
Respondent when Cerpa called the group to attention. When
Smith continued writing in the book, Cerpa told her to pay
attention but Smith replied that she was just finishing. Then
Cerpa told Smith to close the book and she did so. Cerpa
testified that after this incident took place, he told Medley
that Smith would have to be managed due to her hostility
and anger over an essentially neutral situation. Medley testi-
fied that she met with Smith about Cerpa’s complaint and
that Smith agreed to be accommodating in the future.
Respondent was well aware of Smith’s union activities;
Medley had asked Smith whether she was involved and
Smith had replied that she supported the Union. As discussed
above, I have found that Respondent had antiunion animus.
I have further found that Respondent has committed viola-
tions of Section 8(a)(1) of the Act. I find that a motivating
factor in Smith’s discharge was the fact that she was active
on behalf of and supported the Union. However, Respondent
offers a defense and I must decide whether Respondent
would have discharged Smith even if she had not engaged
in any union activities. Wright Line, supra. I shall begin with
an examination of Respondent’s practices with respect to
other employees who had been counselled or warned about
their performance on the job.
Respondent’s personnel records show that direct care em-
ployee Wilfredo Lopez had various difficulties relating to re-
peated lateness and absence. When he was confronted by su-
pervisors, Lopez became hysterical and threatened the resi-
dence manager. On other occasions, Lopez threatened co-
workers and superiors with physical violence to the extent
that they were frightened and nervous and they contemplated
filing a complaint with the police. Lopez was also cited for
engaging in loud scenes at the residence. This behavior con-
tinued for several years beginning in 1989, but Lopez was
not discharged for his behavior. On May 28, 1991, direct
care worker Stephanie Vaughn was counselled by Wright
about the manner of speech and insubordinate attitude she
used to address managers and supervisors. Vaughn had
threatened that she might not come to work. Medley ac-
knowledged that Vaughn was not disciplined for her actions.
Direct care worker Linda Jackson had a pattern of lateness
and absence beginning in late 1989; on occasion she left
early without permission and she slammed doors in the facil-
ity when she was told she could not leave work. According
to the personnel file, Jackson had a problem controlling her
feelings. Medley acknowledged that there was no written
warning for this conduct in Jackson’s file.
These examples show that Respondent tolerated door
slamming, a rebellious attitude, insubordination, loud scenes
and threats of violence to coworkers and superiors when en-
gaged in by other direct care workers. However, with regard
to Smith, Respondent discharged her after she was beaten by
a client when she became upset that no one in management
had called to see how she was faring and because no one
seemed able to give her advice about how to take time off
and apply for Workers Compensation. This is surely dis-
parate treatment. The incidents with the nurse and the psy-
chologist pale in comparison with the acts engaged in by
other employees who were not discharged, such as threats of
violence, door slamming and the like. Further, the letter dis-
charging Smith refers to difficulties with peers, an allegation
which Medley admitted was unfounded, and prior warnings
about insults and obscenities which do not appear in the
record. I find that Respondent treated Smith disparately be-
cause she joined and supported the Union. Respondent dis-
charged her, knowing that she was a union activist, just 5
days before the election. I do not find that Respondent has
carried its burden of showing that it would have discharged
Smith even in the absence of union activity. Respondent thus
violated Section 8(a)(3) and (1) of the Act when it dis-
charged Smith.
E. Discharge of Mervis Lewis
Mervis Lewis was a direct care worker at ICF 1. In Feb-
ruary 1991, she signed a card for the Union. Later she went
to union meetings, she distributed union literature and she
both wore and distributed union hats and buttons. Lewis tes-
tified that Assistant Residence Manager Wright saw her in a
group of union supporters who were posing for a group pic-
ture outside the facility.
On May 1, 1991, the day of the election, Lewis was to
complete her shift at 8 a.m., having begun at 11 p.m. the
night before. Before 6 a.m. that day, a Board agent arrived
at the facility to conduct the election. Then Renee Velasquez,
a business representative for the Union, came in. When it
was close to 6 a.m., Velasquez told Lewis that she was look-
ing for Felix Rivera who was supposed to be the union ob-
server at the election. Rivera was not there. Lewis, who was
taking her break from 6 to 7 a.m., told Velasquez that she
would act as the union observer. Lewis testified that after her
break, from 7 to 8 a.m. her duty was to ‘‘float’’ and help
the other staff, sit in the dining room with any residents who
might be there or watch out for the bus that comes to take
clients to their day programs. At 6 a.m., additional staff came
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 According to employee Lucy Diaz who worked this shift with
Lewis, on the day of the election four direct care workers came in
at 6 a.m.
10 Respondent’s employees regularly perform a number of jobs in
the facility. When the residence is short staffed, direct care workers
may act as cook.
11 After her suspension, Lewis was given a 10:30 appointment
with Medley. Lewis arrived at 10:15 and Medley was in another
meeting so Lewis waited outside. Eventually, Medley came out and
told Lewis she should have been there at 10 a.m. The meeting was
rescheduled. I do not believe this incident is meant to be covered
by Gonzalez’ letter which I believe refers to problems Lewis had on
the job.
12 Velasquez maintained that she had asked permission for a dif-
ferent direct care worker to be an observer. It is of no moment
which employee Velasquez had asked to be relieved since there is
no suggestion in the record that Lewis was aware that Velasquez had
asked Medley if Lewis could leave her post.
in for the day shift. On May 1, Lewis had been assigned to
be ‘‘one on one’’ with client Morales, a person who may not
be left alone. When employee Juana Isaac came in at 6 a.m.,
she took over the responsibility for Morales and Lewis was
no longer ‘‘one on one’’ with Morales.9
Lewis testified that while she was acting as the union ob-
server, Assistant Residence Manager Wright came in to work
and said, ‘‘good morning.’’ Then Residence Manager Hamp-
ton and Medley also reported to work and they greeted
Lewis as well. Lewis, having been told by the Board agent
that she was not to speak to anyone while she was the union
observer, did not ask Wright, Hampton nor Medley if she
could continue observing after her break, that is for the last
hour of her shift from 7 to 8 a.m. No one in management
said anything to Lewis about her actions in having acted as
the union observer and no one told her that she did not have
permission to continue being an observer.
Residence Manager Hampton testified that on the day of
the election, she arrived at the facility at 6:30 a.m. She saw
Lewis acting as the union observer for the election. It is not
contended by Respondent that Hampton instructed Lewis to
cease observing.
Lewis testified that on May 6 she was cooking in the facil-
ity when she was summoned to Medley’s office where she
found both Medley and Quinones.10 Medley asked Lewis
what happened on May 1; she asked whether Lewis knew it
was chaos in the facility and that Morales had hit another cli-
ent. Medley asked Lewis who had given her permission to
be the observer for the Union; Lewis replied that nobody had
given her permission. Lewis also told Medley that when
members of management reported to work, none of them told
her that she could not remain as the observer. Medley then
told Lewis that she did not like Lewis’ attitude and she sent
Lewis home, telling her that she was suspended. Lewis stated
that nothing was mentioned at this meeting concerning con-
duct to peers and supervisors; the only subject was May 1,
1991.
Lewis eventually met with Assistant Executive Director
Gonzalez on June 3 or 4. Gonzalez told Lewis that according
to Medley she had abandoned her duties and that she would
be fired. When Lewis asked for this to be put in writing,
Gonzalez told her that the discharge letter had not yet been
prepared.
Lewis received a letter from Gonzalez dated June 4, 1991,
which stated, in relevant part:
[S]upervisory personnel have consistently docu-
mented a pattern of lateness and instances of negative
verbal exchanges on your part with consultants, super-
visory personnel and peers.
[T]he incident which took place May 1, 1991 when
you abandoned your duties to supervise the election
which is an act of gross misconduct, could not be over-
looked. . . . As a result you placed your clients in
jeopardy. Your actions of that date have led us to ter-
minate your employment. . . .
Lewis’ file contains one memorandum that she came to
work 12 minutes late on one occasion.11 Respondent does
not point to any other documents which would establish a
‘‘pattern of lateness.’’
Lewis testified that there is a message book in the facility
in which workers on different shifts write messages to each
other as a means of communication. Lewis stated that an em-
ployee might write that there is not enough food or that a
client needed supervision because her room was in disarray.
On February 21, 1991, Medley wrote Lewis a note that she
was placing abrasive messages in the book. Although Re-
spondent contends that Lewis received a letter from Hampton
about this prior to February 21, Lewis denies that assertion.
Lewis testified that client Morales is retarded: she hits oth-
ers, spits, curses, kicks, bites, throws her helmet around, tears
the tablecloth and knocks food over. On February 23, 1991,
Cesar Garces, a social worker wrote a note to Hampton stat-
ing that he had observed Lewis show frustration and poor
tolerance when working with Morales. As a result, Lewis’
shift was changed so that she would have more supervision.
On March 10, Garces again wrote to Hampton complaining
that when he asked Lewis for some information about a cli-
ent, she refused to answer and was disrespectful. Lewis testi-
fied that she did not refuse to give Garces the information.
Garces did not testify herein. Nurse Figueroa testified that
she once observed Lewis sitting in Morales’ room while the
latter was lying in bed crying. She asked Lewis why Morales
was crying and Lewis responded, ‘‘How am I supposed to
know. Why don’t you ask her.’’ Morales then told Figueroa
that she wanted to get out of bed and have some coffee.
Figueroa testified that Morales should not have been in bed
and crying and that Lewis’ response to her was inappro-
priate. Figueroa reported this incident to Medley.
Respondent’s files show that on January 18, 1991, a super-
visor wrote that Lewis ‘‘is performing a very good job; she
is cooperative, conscientious and very knowledgeable.’’
Lewis’ personnel file contains other material but those items
do not relate to any of the reasons cited in Gonzalez’ letter
of dismissal. Further, those matters seem to be either mis-
takes on the part of Respondent or problems caused by su-
pervisory errors. Therefore, I do not deem them relevant to
the issue of Lewis’ discharge.
Medley testified that when she met with Lewis after May
1, she told Lewis that she had left her assigned duties and
she asked Lewis who had given her authority to abandon her
client. Medley told Lewis that Velasquez had telephoned her
at home early that morning to ask whether Lewis could be
excused and that she had refused permission.12 According to
Medley, she wanted to know who had authorized Lewis to
leave the clients. Medley testified that she told Lewis that
937PUERTO RICAN FAMILY INSTITUTE
13 Medley did not provide any details about the ‘‘heated’’ nature
of the discussion.
Lewis was not accused of doing anything wrong but that
Medley just wanted to find out who authorized Lewis to ob-
serve the election. Medley stated that Lewis said she could
not recall; she refused to answer the question and the discus-
sion became heated.13 Medley told Lewis to leave the build-
ing and that she would recommend a 3-day suspension ‘‘be-
cause I felt it was insubordinate after three requests—that she
calm down and try to help me get to the bottom of this mat-
ter. And she refused.’’ Before Lewis left, according to Med-
ley, Lewis punched the wall behind Medley, inches from her
face, and then Lewis went upstairs and told everybody that
she was being terminated for union activity. Lewis then re-
turned and asked Medley if she was suspended or terminated,
and Medley replied that Lewis was suspended. Medley testi-
fied that she referred the matter to headquarters and told her
superiors that she did not feel comfortable working with
Lewis after this incident.
Medley acknowledged that after she spoke to Velasquez
on the day of the election she did not inform any of the su-
pervisors at the facility that she had refused permission for
an employee to be released to observe the election. Medley
also stated that she did not know whether anyone had told
Lewis that she should not be an observer. Medley conceded
that when she interviewed Lewis she told her that she was
not accusing her of wrongdoing; however, she then rec-
ommended to Girone that Lewis be terminated for aban-
doning her post. Medley stated that when Lewis was on her
lunchbreak she was permitted to do anything she pleased.
Medley testified that she did not know what period of time
Lewis actually acted as an observer. She recalled that Lewis
told her that someone else was watching Morales. Medley
conceded that an employee with a ‘‘one on one’’ patient was
entitled to take a 1-hour break; however, Medley also
seemed to maintain that no one else could cover for such a
patient because all the other employees have duties that re-
quire their attention. I formed the impression from listening
to Medley testify that she was laboring mightily to prove that
Lewis was not entitled to a break from 6 to 7 a.m. even
though she was not able to testify categorically that that was
the case. I find that Medley’s testimony on this issue was
shifting, evasive and unreliable. I also find that Medley’s tes-
timony about how she came to recommend discharge is in-
consistent and unreliable. It is clear that Medley told Lewis
she was not charged with wrongdoing but that Medley only
wanted to find out who authorized Lewis to act as observer.
When Lewis could not enlighten Medley, she told Lewis she
would recommend a 3-day suspension for insubordination in
refusing to answer the question. After Lewis purportedly hit
the wall and complained to others in the facility, Medley de-
cided she did not feel comfortable working with Lewis; but
instead of recommending termination on that basis, Medley
recommended to Girone that Lewis be terminated for leaving
her post. The termination letter issued to Lewis does not
mention the interview with Medley and it states that by leav-
ing her post Lewis engaged in gross insubordination and was
therefore being discharged. Thus, ‘‘headquarters’’ evidently
did not believe that the final interview with Medley was
grounds for discharge. Lewis was recalled on General Coun-
sel’s rebuttal and she denied hitting the wall behind Medley.
In view of Lewis’ denial that she hit the wall and the fact
that this incident is not cited as a reason for discharge, I
doubt that the incident occurred and I find that it is irrelevant
to the discharge.
Gonzalez testified that on the morning of the election, she
spoke to the Board agent conducting the election at the facil-
ity and she told him that no employee could be released to
act as an observer until there was coverage. Gonzalez said
that a staff person could be released as soon as another staff
member was available to cover the observer’s duties. Gon-
zalez confirmed that she told Lewis at the discharge inter-
view that she was discharged for leaving her client to her
own devices. Gonzalez testified that she did not know if
Lewis was beginning or ending her shift at the time of the
election and she did not know when Lewis was scheduled to
take a break.
The record establishes that Respondent was aware when it
discharged Lewis that she was a union supporter. This fact,
coupled with Respondent’s antiunion animus and the fact
that Respondent engaged in conduct that violated Section
8(a)(1) leads me to conclude that Lewis’ activities on behalf
of the Union were a motivating factor in her discharge.
Wright Line, supra. Respondent’s letter of discharge cites her
prior conduct and the fact that she abandoned her client. I
find that these reasons are pretexts. Lewis’ personnel file
does not show any pattern of lateness nor does it show more
than minor difficulties with respect to the message book and
two exchanges with professional consultants. Further, Re-
spondent’s letter of discharge clearly relies on Lewis’ con-
duct on the day of the election as the reason for the dis-
charge; the other matters are cited as background and none
of Respondent’s witnesses testified that Lewis would have
been discharged had she not acted as the election observer
on May 1. The cited reason of abandoning her post also
seems pretextual. First, none of the managers who saw Lewis
observing the election said anything to her or to the Board
agent about Lewis returning to her duties. This is in accord
with Gonzalez’ statement to the Board agent that an em-
ployee could be released to observe the election as soon as
coverage was obtained. In fact, when Isaac took over Lewis’
duty to be ‘‘one on one’’ with client Morales, that condition
had been fulfilled. Lewis was on her break from 6 to 7 a.m.;
had there not been ample coverage from 7 to 8 a.m. one of
the managers would have instructed her or the Board agent
that Lewis was required on the job. Second, when Medley
interviewed Lewis and asked who had authorized Lewis to
act as an observer, Medley specifically told Lewis that she
was not charged with any wrongdoing but that Medley mere-
ly wanted to know who told her to be the union observer.
Moreover, even if Respondent were not found to be citing
Lewis’ actions as a pretext, I would find that Respondent
would not have discharged Lewis for acting as the observer
on May 1 from 7 to 8 a.m. Indeed, I would find that the dis-
charge constituted disparate treatment. Respondent’s per-
sonnel files show, and Medley acknowledged, that a number
of other employees engaged in activities similar to those al-
leged against Lewis and that they were not discharged. Em-
ployee Linda Jackson left work early without permission and
also slammed the door and used obscene language when she
was told she could not go home early. Jackson was not given
a written warning and she was not discharged. Her action in
leaving work early was surely the same as that attributed to
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lewis, namely, taking 1 hour off at the end of her shift. On
May 29, 1991, employee Delia Lopez was cited for failing
to follow up concerning a client who had scratches on his
body, for requesting time off without adequate notice and for
‘‘hanging out’’ on the front steps of the facility and leaving
the facility to go next door while on duty. Lopez was in-
formed that her actions threatened client safety and that as
a result she would be monitored more closely. In June,
Lopez received a 3-day suspension for her attitude and for
slamming the door on receiving instructions from manage-
ment. Lopez was not discharged for this activity which is
surely more egregious than that attributed to Lewis by Re-
spondent. I am convinced that Respondent would not have
discharged Lewis but for her union activity and I thus find
that Respondent violated Section 8(a)(3) and (1) when it dis-
charged Lewis.
F. Evaluation of Lucy Diaz
Lucy Diaz has been employed as a direct care worker by
Respondent for 13 years. She signed an authorization card
for the Union on January 18, 1991, and began wearing a
union button to work. Diaz attended the preelection con-
ference held at the Regional Office. On the day of the elec-
tion, Diaz acted as an observer for the Union at either ICF
2 or ICF 3.
In January 1992, Diaz received an unsatisfactory annual
evaluation for the past year and she was placed on probation
for 3 months. Respondent concedes that in all prior years,
Diaz had received satisfactory or higher evaluations. Diaz
was the only direct care worker at ICF 1 to receive an unsat-
isfactory evaluation in January 1992. The record shows that
Diaz was denied a raise as a result of the unsatisfactory eval-
uation. However, issues relating to the size and timing of the
raise she might have otherwise received were not litigated
herein and they are thus appropriately deferred to a compli-
ance proceeding.
Diaz’ evaluation was performed by Medley and by Car-
men Lopez who had become the Residence Manager in June
1991. Medley testified that she was aware that Diaz was ac-
tive in the Union when she evaluated Diaz, but Medley de-
nied that she was influenced by Diaz’ activities.
The evaluation criticizes Diaz for failing to notify super-
visors of lateness; however, the evaluation form shows that
Diaz had not been late since her last annual appraisal. I con-
clude that this criticism is gratuitous and unfounded.
The evaluation form used by Respondent is a preprinted
document consisting of several sheets of paper. There are
various titles or categories under which an employee is rated
on an ascending scale from 1 to 4 points. Next to each num-
ber from 1 to 4 a brief summary of the value is given, such
as ‘‘sloppy,’’ ‘‘does only minimum,’’ ‘‘exceeds requirements
of the job’’ and the like. The evaluator indicates the points
awarded in each category by placing an asterisk next to the
number from 1 to 4. Space is provided in each category or
title for the evaluator to provide additional comments after
the rating from 1 to 4 points has been performed. On the last
page of the evaluation form, a line reads as follows:
OVERALL EVALUATION: UNSATISFACTORY
SATISFACTORY VERY GOOD OUTSTANDING
When an evaluation has been performed, the total of all the
points received is shown to the right of this line as ‘‘19
points’’ or ‘‘21 points.’’ In addition, the overall evaluation
indicated by the total points achieved is shown by bracketing
one of the descriptions on the line. The testimony in this
case shows that a total of 21 points would lead to the word
‘‘SATISFACTORY’’ being bracketed; a total of only 19
points would lead the evaluator to bracket the word ‘‘UN-
SATISFACTORY.’’
On Diaz’ evaluation form, the title ‘‘Quality of Work’’
shows that Diaz was given two points and rated acceptable.
The comment for this title states that Diaz requires constant
reminders to complete client goal documents and incident re-
ports. Diaz denied that she did not complete the documents
on time and she testified that she had never been warned that
she was deficient in this area. Medley testified that employ-
ees who do not complete documents are given written warn-
ings, and she identified several such in evidence. Medley
conceded that Diaz had never been written up for failure to
complete documentation. I find that this criticism is un-
founded.
Diaz received two points for meeting the minimum stand-
ard under the title ‘‘Quantity of Work.’’ Diaz testified, and
her file shows, that Diaz was never warned that she only did
the minimum amount of work required.
Diaz received two points for satisfactory ‘‘Job Knowl-
edge.’’ The comment states that Diaz fails to implement her
knowledge most of the time and it cites a failure to follow
the Behavior Modification Plan (BMP), for individual clients
as well as a sandwich Diaz once made for a client. Diaz de-
nied that she failed to carry out the BMP for clients and her
record does not show that she was ever warned for this. As
to the sandwich, Diaz explained that the facility often runs
short of food and the clients are often fed successive peanut
butter and jelly sandwiches. Those clients who function at a
higher lever get tired of peanut butter and jelly. One such
client, Torres, complained to Diaz on one occasion and since
there was some bologna on hand, Torres stated that he would
prefer that. Diaz then prepared him a sandwich of bologna,
mayonnaise and jelly. Diaz was criticized for this in her
evaluation although at the time no warning was issued to her
orally nor in writing. Respondent presented no evidence be-
fore me to show that this sandwich was improper from a
health or dietary standpoint. It is not self evident that this
sandwich could cause harm to Respondent’s patients. Indeed,
bologna and mayonnaise are often served together and many
meats are served with a fruit jelly on the side. I find that Re-
spondent seized on this incident to criticize Diaz without ap-
parent justification.
Diaz received two points for ‘‘Planning and Organizing,’’
with the comment that she failed to give adequate notice for
her medical appointments and that she refused to attend in
service training and staff meetings. Diaz has a heart condi-
tion, chronic asthma, vascular disease and two hernias. She
acknowledged that on one occasion she called and told
Hampton that her legs were swollen and she could not come
to work. Diaz testified that she did not refuse to attend meet-
ings, but occasionally she has missed them because she had
medical appointments.
Under the title ‘‘Judgment,’’ Diaz was given two points
for having dependable judgment only on routine matters and
requiring direction. The comment cites the infamous bologna
939PUERTO RICAN FAMILY INSTITUTE
sandwich, allowing a client to rip his clothes and hiding
knives. Diaz testified that she never allowed a client to rip
his clothes and that she had never been warned about such
an incident. Diaz stated that state law requires knives to be
out of reach of clients and she has followed this procedure.
Diaz has never been warned about a failing in regard to
knives.
Under the title ‘‘Initiative,’’ Diaz was given two points for
being able satisfactorily to perform routine assignments. The
comment criticizes Diaz for refusing all proposed changes in
schedule, duties and managers. The comment states that Diaz
fails and constantly needs consulting to keep clients from en-
gaging in disruptive behavior. Diaz testified that she prefers
to keep to her existing evening shift from 11 p.m. to 8 a.m.
because of her medical condition but that she has performed
other shifts at management’s request. Diaz denied that she
found it necessary to consult managers about routine matters
and she denied that she had ever been warned about this or
that she had been told that she was uncooperative. Diaz
pointed out that there are no managers on her shift at night.
The evaluation form gives Diaz two points for ‘‘Reli-
ability,’’ stating again that she does only what is necessary
and nothing more. The comment further criticizes Diaz for
hesitating to stay for coverage when necessary.
Under the title ‘‘Adaptability,’’ the typed asterisk was
placed next to a value of two points. However, the asterisk
was crossed out by hand and a new one pencilled in next
to only 1 point given for being inflexible; that is, not func-
tioning in new environments and having difficulty grasping
new skills. The typed comment at the bottom criticizes Diaz
for being unwilling to change her schedule. Under the title
‘‘Cooperation and Attitude,’’ Diaz had been awarded two
points. Here again the typed asterisk had been crossed out
by hand and an asterisk was pencilled in next to the lowest
point, demonstrating a lack of cooperation and team work
and a failure to get along with others. The comment criti-
cizes Diaz for failing to be helpful or cooperative with super-
visors, for being defensive and argumentative. The comment
closes with the criticism that Diaz has complained to the ex-
ecutive director of Respondent on several issues. Diaz testi-
fied that she has never been warned for being uncooperative
with managers.
Under the title ‘‘Resident Care,’’ Diaz was given 1 point
for failing to care for the residents satisfactorily and for re-
quiring constant supervision. The comment mentions for the
third time the bologna sandwich. It also mentions that a cli-
ent went unshaven, not properly dressed and wearing some-
one else’s clothes to a day program. Diaz testified that she
had never permitted clients to go out unshaven or improperly
attired and that she had never been warned about such be-
havior. This is another baseless criticism.
Finally, for ‘‘Programming,’’ Diaz was given two points
for following instructions while not understanding concepts
and requiring close supervision. Here again, the comment
criticizes Diaz for failing to complete documents, but as
shown above, Diaz was never warned about this matter. The
comment criticizes Diaz for doing too much to assist her cli-
ents; this is in contrast to comments in other parts of the
evaluation which criticize her for doing too little. Respondent
did not offer any testimony to explain this seeming con-
tradiction. Once again, I find that the criticism of Diaz seems
baseless.
Under ‘‘Overall Evaluation,’’ the word SATISFACTORY
had been marked originally by typed brackets, and Diaz had
been awarded a total of 21 points. However, the satisfactory
designation was crossed out by hand and the word UNSAT-
ISFACTORY bracketed. Further, the typed award of ‘‘21
points’’ was crossed out and ‘‘19 points’’ was written in by
hand.
Girone testified that she has known Diaz for 10 years; she
meets with Diaz when she visits the facility. Girone testified
that Diaz was always cooperative and that she was always
willing to do her best. Before the evaluation, Girone had
never been told that Diaz was unable to work with people.
All of Diaz’ prior evaluations show that she had an excellent
relationship with her peers and was rated satisfactory for co-
operation with management.
Lopez testified that she used to correct Diaz verbally and
that she never issued a written warning to Diaz for being un-
cooperative and for doing only the minimum necessary.
However, Lopez stated that Diaz was uncooperative, that it
was hard to make her understand and that she was hesitant
to receive directions. Lopez did not give any specific exam-
ples of Diaz’ purported failings in these areas. Lopez’ hours
are from 8 a.m. to 5 p.m. When it was pointed out to her
that she could hardly have had much contact with Diaz who
worked from 11 p.m. to 8 a.m., Lopez changed her answer
to say that in the summer of 1991 she worked from 6 or 7
a.m. to 3 p.m. Unless Lopez would have me believe that she
worked 24 hours in a day, I cannot find that she had much
occasion to observe Diaz.
It is instructive to contrast the evaluation given to Diaz,
a long service employee of Respondent who had a history of
satisfactory and excellent ratings, with that given to em-
ployee J. Alvarado by Medley and Lopez. Alvarado performs
the same job as does Diaz at ICF 1, but he has only worked
for Respondent since 1990. Alvarado was rated ‘‘Satisfac-
tory’’ at a point total of 21, and he was given a raise in Jan-
uary 1992. Medley and Lopez wrote in Alvarado’s evaluation
that he refuses to stay to provide needed coverage, that he
refuses to assume responsibility for client and agency prop-
erty, that he seldom does more than the minimum work re-
quired, that he does not apply client behavior modification
plans, that he did not intervene when a client went out in his
underclothes, that he does not take time to plan and organize,
that he refuses to apply his intelligence and defers all deci-
sions to peers and supervisors, that he is passive, that he is
unreliable in quality of work, that he will not change his
shift times because he is a fulltime college student, that he
has a defensive and negative attitude toward managers, that
he fails to collect data and that he fails to follow methods.
These criticisms are remarkably similar to those leveled at
Diaz. The conclusion seems inescapable that Respondent
evaluated Diaz disparately.
Lopez testified that she and Medley evaluated Diaz and
that Medley then had the evaluation typed at headquarters.
From Lopez’ testimony it is evident that the method used
was to give a handwritten evaluation form to the typist and
that Lopez and Medley then reviewed the typewritten form
before it was given to Diaz. When confronted with the fact
that the typed form originally gave Diaz a satisfactory rating
with a total of 21 points and that two titles originally valued
at 2 points had been changed to 1, Lopez stated that this was
a typing error. She testified that the two titles where the as-
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 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.
terisk was changed to show a lower rating had originally
been marked ‘‘1’’ but that the typist erred and placed the as-
terisk next to ‘‘2.’’ Diaz further testified that originally she
had written ‘‘19 points’’ but that the typist made an error
and typed ‘‘21 points.’’ Finally, Diaz stated that she had
originally bracketed the rating ‘‘UNSATISFACTORY’’ but
that the typist made an error and bracketed ‘‘SATISFAC-
TORY.’’ Medley similarly testified that she and Lopez had
originally given Diaz ‘‘19 points’’ and had marked her unsat-
isfactory but that the typist at headquarters had made typo-
graphical errors and changed the rating. This explanation
strains credulity. First, my observation of both Medley and
Lopez while they were testifying to this scenario convinced
me that they were evasive and that they had a script and they
were determined to stick to it. Further, their explanation
makes no sense. I am willing to believe that a typist might,
in error, twice type asterisks next to a ‘‘1’’ rather than next
to a ‘‘2.’’ But I cannot conceive how a typographical error
can change ‘‘19 points’’ into ‘‘21 points’’; the two numbers
are not similar in appearance and the placement of the indi-
vidual keys on the keyboard would not lead to this kind of
typographical error. Further, it is most unlikely that a typist
would, on the same line in a document, erroneously type
brackets around the word ‘‘SATISFACTORY’’ instead of
‘‘UNSATISFACTORY,’’ thereby producing a rating of 21
points consistent with a satisfactory rating. If the typist were
careless, it would be just as likely that he or she would
bracket ‘‘VERY GOOD’’ or ‘‘OUTSTANDING’’ rather than
fortuitously picking just the word that matched the 21 point
rating. In sum, I find that Medley and Lopez were untruthful.
I find that they had originally given Diaz 21 points and a
satisfactory rating, but that they later changed the evaluation
so that Diaz could be marked unsatisfactory, placed on pro-
bation and denied a raise. I note that many of the criticisms
leveled at Diaz concerned matters which were not supported
by testimony nor by written warnings to the file. I also note
Medley’s testimony that Respondent has a policy of docu-
menting problems and that no employee should be taken by
surprise upon receiving an unsatisfactory rating.
I have found above that Respondent has an antiunion ani-
mus. Respondent Was aware of Diaz’ activities in support of
the Union. I find that Medley and Lopez devised negative
comments in Diaz’ evaluation because she supported the
Union; Medley and Lopez used unfounded criticisms and
disparate point awards to evaluate Diaz. In addition, after
completing the evaluation, Medley and Lopez then down-
graded Diaz still further, making last minute changes in her
total points and overall evaluation so that she would be
deemed unsatisfactory, placed on probation and denied a
raise. Medley and Lopez used pretexts to downgrade Diaz
because Diaz supported the Union. Respondent thus violated
Section 8(a)(3) and (1).
CONCLUSIONS OF LAW
1. By interrogating its employees about their activities in
support of the Union, by instructing its employees to report
union activity, and by instructing its employees not to engage
in union activities at its facility, Respondent violated Section
8(a)(1) of the Act.
2. By discharging its employees Avery Smith, Lillian
Lafont, and Mervis Lewis because they supported the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.
3. By giving an unsatisfactory evaluation to its employee
Lucy Diaz, placing Diaz on probation and denying her a
raise because she supported the Union, Respondent violated
Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent having discriminatorily evaluated Lucy
Diaz, it must be ordered to expunge the unsatisfactory eval-
uation from its files and to make her whole for the denial
of the raise she would have received but for the unlawful
evaluation in the manner described above.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Puerto Rican Family Institute, Inc., New
York, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating its employees about their
union activities, instructing its employees to report union ac-
tivities, and to refrain from engaging in union activities on
its premises.
(b) Discharging any employee or unsatisfactorily evalu-
ating any employee for supporting the Union.
(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 Avery Smith, Lillian Lafont, and Mervis Lewis
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth
in the remedy section.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.
(c) Remove from its files any reference to the unsatisfac-
tory evaluation of Lucy Diaz and notify her that this has
941PUERTO RICAN FAMILY INSTITUTE
15 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.’’
been done and that the unlawful evaluation will not be used
against her in any way, and make whole Lucy Diaz for the
loss of the raise and any other benefits she would have re-
ceived but for her unlawful evaluation in the manner set
forth in the remedy section.
(d) 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.
(e) Post at its three ICF locations in the Bronx, New York,
copies of the attached notice marked ‘‘Appendix.’’15 Copies
of the notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge you, give you unsatisfactory eval-
uations, or otherwise discriminate against any of you for sup-
porting Local 144, Hotel, Hospital, Nursing Home & Allied
Services, SEIU, AFL–CIO, or any other union.
WE WILL NOT coercively question you about your union
support or activities and WE WILL NOT instruct you to refrain
from union activities on our premises.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Avery Smith, Lillian Lafont, and Mervis
Lewis immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other benefits result-
ing from their discharge, less any net interim earnings, plus
interest.
WE WILL notify each of them that we have removed from
our files any York reference to her discharge and that the
discharge will not be used against her in any way.
WE WILL remove from our files any reference to the unsat-
isfactory evaluation of Lucy Diaz and notify her that this has
been done and that the unlawful evaluation will not be used
against her in any way, and WE WILL make Lucy Diaz whole
for the loss of her raise and any other benefits she would
have received but for her unlawful evaluation.
PUERTO RICAN FAMILY INSTITUTE, INC.