Scenic Hills Nursing Center

National Labor Relations Board - Administrative Judge Opinions

Nov 14, 2008

09-CA-044146 (N.L.R.B. Nov. 14, 2008)

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Bidwell, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
VRABLE III, INC. D/B/A
SCENIC HILLS NURSING CENTER
and Cases 9-CA-44146
9-CA-44296
9-CA-44297
9-CA-44320
DISTRICT 1199, HEALTH CARE AND SOCIAL 9-CA-44348
SERVICE UNION, SEIU 9-CA-44439
Naima R. Clarke, Esq., of Cincinnati, OH,
for the General Counsel.
Carol K. Walters, of Langsville, OH,
for the Charging Party.
Scott Salsbury, Esq., of Hudson, OH,
and James Muckle, Esq., of Columbus, OH,
for the Respondent Employer.
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on
September 9 through 11, 20081, in Gallipolis, Ohio, pursuant to a Consolidated Complaint and
Notice of Hearing in the subject case (complaint) issued on July 21, by the Regional Director for
Region 9 of the National Labor Relations Board (the Board). The underlying charges and
amended charges were filed on various dates in 2008 by District 1199, Health Care and Social
Service Union, SEIU (the Charging Party or Union) alleging that Vrable III, Inc. d/b/a Scenic Hills
Nursing Center (the Respondent or Employer) has engaged in certain violations of Sections
8(a)(1), (3), (4) and (5) of the National Labor Relations Act (the Act). The Respondent filed a
timely answer to the complaint denying that it had committed any violations of the Act.
Issues
The complaint alleges that in March 2008, the Respondent told employees that they
would have already received a wage increase if there was no Union in violation of Section
8(a)(1) of the Act, terminated employee Joanne Haskins in violation of Section 8(a)(1) and (3) of
the Act, suspended and terminated employees Lori Gravely and Amy Rupe in violation of
Sections 8(a)(1), (3), and (4) of the Act, and engaged in a number of unilateral changes,
bypassed the Union and failed and refused to bargain collectively in good faith with the Union in

1 All dates are in 2008 unless otherwise indicated.
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violation of Section 8(a)(1) and (5) of the Act.2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
Findings of Fact
I. Jurisdiction
The Employer, a corporation with a place of business in Bidwell, Ohio, is engaged in
operating a nursing home and providing in-patient medical care. The Employer, during the past
calendar year in conducting its operations, derived gross revenues in excess of $100,000 and
purchased and received goods valued in excess of $50,000 directly from points outside the
State of Ohio. The Respondent admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Respondent purchased the facility in November 2006 and since about April 14,
2007, the Union has been the designated exclusive collective-bargaining representative of the
Unit comprised of all full and part-time employees, including all nursing assistants, certified
nursing assistants, dietary employees, including cooks, cook assistants, and dietary assistants,
laundry employees, housekeeping employees, activity assistants and restorative assistants.
Respondent recognized the Union as the representative of the employees in the unit by its
execution of a settlement agreement approved by the Regional Director on June 11, 2007.
While the parties have participated in negotiations in an effort to reach their initial collective-
bargaining agreement, they have been unsuccessful to date and no agreement has been
reached.
Bill Potter held the position of Executive Director of Respondent from December 17,
2007 to June 13, and Diana Harless continues to serve as the Director of Nursing having been
hired on May 29, 2007. Carol Walters holds the position of organizer on behalf of the Union and
has serviced the employees in the Unit with various owners since 1996. Employee’s Gravely
and Rupe held the positions of State Tested Nursing Assistants and provided care for residents
at the nursing center until their terminations.
B. The Section 8(a)(1), (3), and (4) Allegations
The General Counsel alleges in paragraph 6 of the Complaint that the Respondent

2 After the opening of the hearing on September 9, the undersigned approved two non-
board settlements between the Charging Party and the Respondent over the objection of the
General Counsel. The first settlement resolved the independent Section 8(a)(1) allegation
alleged in paragraph 5 of the complaint and the Section 8(a)(1) and (5) allegations alleged in
paragraphs 10, 11(b), 12, and 13 of the complaint (ALJ Exh. 1). The second non-board
settlement resolved the Section 8(a)(1) and (3) allegation in paragraph 6(a) of the complaint
involving the termination of employee Joanne Haskins (ALJ Exh. 3). Additionally, the
undersigned approved an informal board settlement agreement with a Notice to Employees
executed by the Charging Party and the Respondent that resolved paragraph 11(a) of the
complaint over the objection of the General Counsel (ALJ Exh. 2). Accordingly, this decision will
only address the Section 8(a)(1), (3) and (4) allegations alleged in paragraphs 6(b), (c), and (e)
and paragraphs 15 and 16 of the complaint concerning the terminations of Gravely and Rupe.
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suspended employees Gravely and Rupe on April 5, and then terminated them on April 7,
because of their support for the Union or because the Union filed an unfair labor practice charge
in Case 9-CA-44296 for which they gave testimony to the Board.
1. The Facts
On February 5, approximately 13 bargaining unit employees including Gravely and Rupe
participated in a candlelight vigil to support the Union’s contract demands (GC Exh. 2). During
the course of the vigil, they saw Potter standing in the dining room window and the
administration headquarters window looking out and observing those employees that
participated in the vigil.
On March 20, Gravely and Rupe saw Potter in the facility and inquired when they were
going to get their wage increases. Potter replied, “that they would have already received their
wage increases if there was no union or if the employees had got rid of the Union.”
On April 1, approximately 50 bargaining unit employees including Gravely and Rupe
signed a support petition on behalf of the Union expressing their desires to be represented by
the Charging Party (GC Exh. 2). That petition was addressed and mailed to Potter and was
received at the Respondent on April 2 (GC Exh. 3).
On April 5, an incident occurred around 1:45 p.m. in which two nursing home residents
(referred to as KG and SW for privacy considerations) alleged that Gravely and Rupe engaged
in patient abuse against KG. Both Gravely and Rupe worked the daytime shift that day which
ended at 2 p.m. Based on instructions from Harless, Licensed Practical Nurse (LPN) Jimmy
Skidmore telephoned Gravely at home and apprised her that she would be suspended due to
the patient abuse allegations along with her co-worker Rupe. Skidmore informed Gravely not to
report to work the next day (Sunday, April 6). Rupe learned of her suspension when she
received a telephone call from Gravely around 3 p.m. that day. Rupe immediately telephoned
LPN Theresa Taylor who confirmed that the allegations were made and that she was
suspended effective immediately and not to report for work on Sunday. Both Gravely and Rupe
contacted Harless who requested that both individuals come to the facility on Monday morning
around 8 a.m. for separate meetings to discuss the allegations.
Gravely and Rupe reported to the facility on April 7 around 8 a.m. and met independently
with Harless and Potter in his office. Union representative Sharon West participated in both
meetings on behalf of the employees. During the course of each meeting, Harless informed
Gravely and Rupe that they were being suspended for verbal abuse, not turning the patient over
in an appropriate manner, and for cursing at KG. Both Gravely and Rupe, who vehemently
denied the accusations, were permitted to prepare and submit statements to Harless that
summarized their position regarding what occurred on April 5 while they were in the residents
room responding to their call light and trying to address the leakage in KG’s feeding tube (GC
Exh. 5 and 7).
Both employees left the facility at the conclusion of their meetings, and around 11 a.m.
received separate telephone calls from Harless to return to the facility around 1 p.m. Both
employees informed Harless that they had pre-arranged appointments at that time but would
come to the facility immediately after they completed them. Neither Gravely or Rupe informed
Harless that the nature of their appointments involved meeting with a Board agent to give an
affidavit in support of the Union’s unfair labor practice charge in Case 9-CA-44296 nor did
Harless inquire about it.
When both Gravely and Rupe returned to the facility on April 7, Harless informed them in
the presence of Union representative West that the investigation had been completed and
based on the patient abuse allegations being substantiated, each employee was being
terminated. Both Gravely and Rupe refused to sign the disciplinary action form confirming their
terminations (GC Exh. 6 and 8).
Gravely and Rupe had cared for KG and SW for approximately 7-8 months before the
patient abuse allegations and neither reported any problems in working with them or any
complaints raised by the Respondent.
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2. Discussion
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the employer decision. On such a showing,
the burden shifts to the employer to demonstrate that the same action would have taken place
even in the absence of the protected conduct. The United States Supreme Court approved and
adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S.
393, 399-403 (1983). In Manno Electric, 321 NLRB 278, fn. 12 (1996), the Board restated the
test as follows. The General Counsel has the burden to persuade that antiunion sentiment was
a substantial or motivating factor in the challenged employer decision. The burden of
persuasion then shifts to the employer to prove its affirmative defense that it would have taken
the same action even if the employee had not engaged in the protected activity.
The General Counsel asserts that Gravely and Rupe engaged in protected activity when
they participated in the candlelight vigil and were observed by Potter, were informed by Potter
that they would have received there wage increases already if there was no Union or if the
employees got rid of the Union, and because they signed a petition addressed to Potter
supporting the Union. Additionally, Gravely and Rupe along with other employees openly wore
ribbons at work to express support for the Union.
While I find that the General Counsel, based on the above incidents, has made a strong
showing that the Respondent was motivated by protected concerted activity or antiunion
considerations in effectuating the terminations of Gravely and Rupe, I conclude that the
Employer would have taken the same action against both employees even in the absence of
their protected activities for the following reasons.
First, it was Harless rather then Potter who made the decision to suspend Gravely and
Rupe on April 5, and after conducting the mandatory investigation into the patient abuse
allegations independently made the decision to terminate both employees. Potter’s role in the
matter was essentially ministerial. He reviewed Harless’s recommendation and agreed with its
content. The evidence shows that Potter did not discuss the matter with the residents nor did
he speak with staff members before they independently interviewed the residents who filed the
patient abuse allegations. Likewise, Potter did not ask questions or participate orally in the two
separate meetings held with Gravely and Rupe that took place on April 7. Moreover, there is no
evidence on the record that Potter informed Harless that he received the unfair labor practice
charge on or before April 5 that alleged he coerced employees within the meaning of the Act. In
fact, Harless’s unrebutted testimony confirms that she never saw a copy of the unfair labor
practice charge nor did she discuss it with Potter.
Second, while Gravely and Rupe were Union members neither of them was particularly
active, held Union office/steward positions or participated in collective-bargaining negotiations
with Potter or other Employer representatives.
Third, no member of the Respondent including Potter ever interrogated Gravely or Rupe
about their union activities or disciplined any employee because of their participation in the
candlelight vigil or signing the support petition. Likewise, the record shows that neither Gravely
or Rupe collected signatures for the support petition. While the support petition was received by
a secretary of Respondent on April 2 (GC Exh. 3), the General Counsel did not conclusively
establish that Potter saw or reviewed it prior to April 5.
Fourth, the investigation conducted by the Respondent into the patient abuse allegation
is mandated by the Ohio Department of Health and Respondents handbook provisions (R Exh.
2 and 3). In accordance with these requirements, staff members accused of patient abuse must
be suspended and removed from the facility to prevent further contact with the residents.
Additionally, if the allegations are substantiated, the employees accused of patient abuse must
be terminated. Further support for this proposition was provided by the testimony of Thelma
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Cohagen, an inspector for the Ohio Department of Health, who visited the facility on May 28,
and certified that the Respondent adhered to all State and Federal requirements in conducting
the patient abuse investigation. In fact, no citation was issued since the Respondent properly
followed all mandated investigatory procedures.
With respect to the General Counsel’s alternative position that Gravely and Rupe were
terminated because they gave testimony to the Board in Case 9-CA-44296, I reject this
argument for the following reasons.
First and foremost, both Gravely and Rupe testified that they had no knowledge that
either Harless or Potter knew they met with a Board agent on April 7, to give an affidavit in
support of the unfair labor practice charge. Indeed, when Harless telephoned both Gravely and
Rupe to return to the facility around 11 a.m. on April 7, they both informed her that they had a
prior commitment. Neither Gravely or Rupe informed Harless about the nature of the
appointment nor did Harless inquire about the matter. Rather, Harless requested both
employees to report to the facility upon completion of there appointment. Likewise, I find that
the General Counsel did not conclusively establish that Potter received the unfair labor practice
charge in the mail or reviewed it on or before April 5, the date both employees were suspended.
Moreover, Harless credibly testified that she never saw a copy of the unfair labor practice
charge since it was addressed to Potter (GC Exh. 1 (e)), and she never discussed it with him.
Lastly, as discussed above, Potter had no active roll in suspending both employees or in the
underlying patient abuse investigation that ultimately led to Gravely and Rupe’s terminations.
C. Disparate Treatment
In essence, the General Counsel argues that Gravely and Rupe’s version of the facts
should be credited rather then Harless’s determination to rely on the independent interviews
conducted by four different staff members, the witness account,3 and her own independent
interview of both residents.4
The General Counsel further argues that a ruling that I made concerning its subpoena
duces tecum requesting disciplinary records for patient abuse allegations for the year 2007
denied it due process and an opportunity to prove the violation. In this regard, due primarily to
the terminations occurring in April 2008, and the tenure of Potter for the limited period between
December 2007 and June 2008, I determined to limit any disciplinary action information for
patient abuse allegations to the year 2008.5 Despite this ruling, the Respondent at my request,
voluntarily provided numerous documents that it found in its records that addressed patient
abuse investigations for the years 2006 and 2007, including documentation for employee Patty
Wittman who the General Counsel alleged received more favorable treatment due to her having

3 Rupe admitted that she did not discern that either KG or SW, the two residents that lodged
the patient abuse allegations, was impaired in any way.
4 I note Harless’s unrebutted and credible testimony that she initiated the investigation and
directed the four staff members to interview each resident separately. Moreover, it was Harless
rather then Potter who prepared and coordinated all of the paperwork including the staff
members interview summaries. She then forwarded the documents to the Ohio Department of
Health (R Exh. 1). Similarly, Tracy Green the Respondent’s Director of Clinical Services,
testified that if an employee is found to have committed patient abuse, the penalty is termination
without exception. The Respondent’s practice is to terminate if there are two or more
substantiating statements. In the subject case, there was a witness statement in addition to four
separate staff interview reports that confirmed consistent stories regarding the patient abuse
allegations.
5 The General Counsel principally relies on the knowledge of Potter about Gravely and
Rupe’s union activities and his singular action in effectuating their subsequent suspensions and
terminations.
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filed a decertification petition (GC Exh. 27).6
While the General Counsel is critical of the Respondent for not calling Potter as a
witness, the facts establish that the General Counsel alleged Potter as a supervisor/agent and
could have called Potter as an adverse witness but neglected to do so. Moreover, the General
Counsel admits that it did serve Potter with a subpoena duces tecum at the facility but made no
attempt to inquire about his whereabouts or enforce it when it arrived after he left there employ,
an action it could have taken if it deemed his presence was critical to their case in chief.
The General Counsel’s argument in post-hearing brief that the Respondent failed to
interview all employees who worked during the accused persons shift is also unavailing. To
have interviewed LPN’s Skidmore and Taylor who did not personally observe the patient abuse
and only communicated by telephone with Gravely and Rupe to inform them that they were
being suspended and should not report to work on Sunday, April 6, was cumulative and not
critical to the underlying issue of whether patient abuse occurred. Likewise, arguing that the
Respondent did not call as witnesses other employees who had interviewed the residents and
had memorialized the results of those discussions does not enhance their case since the
General Counsel made no attempt to subpoena these individuals.
In summary, the General Counsel contends that the patient abuse investigation was
undertaken to mask the true reason for Gravely and Rupe’s termination. I reject this argument
as the General Counsel did not conclusively establish that the patient abuse investigation
departed from past practice or that Harless’s decision to rely on corroborating evidence from
neutral staff members and a witness account was pretextual.7
Conclusions of Law
1. Scenic Hills Nursing Center is an employer engaged in commerce within the meaning
of Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent did not engage in violations of Section 8(a)(1), (3), or (4) of the Act
when it suspended and then terminated employees Lori Gravely and Amy Rupe.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8

6 I have carefully reviewed both General Counsel and Respondent exhibits that reflect
patient abuse allegations that occurred at the facility in 2007 and 2008. Each exhibit
conclusively establishes that the Respondent strictly followed Ohio Department of Health
regulations and its own internal guidelines when dealing with such cases. Indeed, I specifically
note that in two separate allegations of patent abuse occurring in 2007 and 2008 in which
terminations resulted, the Respondent followed the identical procedures as in the subject case
(GC Exh. 10 and R Exh. 9). Contrary to the General Counsel, I find no disparate or preferential
treatment was granted to Wittman. Indeed, with respect to the allegations lodged against her,
the resident gave inconsistent testimony and there was no corroborating witness. In the subject
case, both of these aspects are present.
7 See, e.g., Yuker Construction Co., 335 NLRB 1072 (2001) (discharge of employee based
on mistaken belief does not constitute unfair labor practice, as employer may discharge an
employee for any reason, whether or not it is just, so long as it is not for protected activity).
8 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
Continued
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ORDER
The complaint is dismissed.
Dated, Washington, D.C. November 14, 2008
____________________
Bruce D. Rosenstein
Administrative Law Judge
_________________________
waived for all purposes.