Shelby Memorial Home

National Labor Relations Board - Board Decisions

Apr 8, 1992

307 N.L.R.B. 5 (N.L.R.B. 1992)

5
307 NLRB No. 4
SHELBY MEMORIAL HOME
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The underlying unfair labor practice charge was filed and served
on Respondent on May 28, 1991, by the Charging Party, the above-
captioned Local 279, International Brotherhood of Teamsters.
2 The name of the Union was changed at its June 1991 convention
to International Brotherhood of Teamsters.
3 Respondent also admits that its administrator, Bill Morgan, and
its director of nursing, Florence Glenn, are its supervisors and
agents, respectively, within the meaning of Sec. 2(11) and (13) of
the Act.
Shelby Memorial Hospital Association d/b/a Shelby
Memorial Home and Teamsters, Chauffeurs,
Warehousemen and Helpers Local Union No.
279 affiliated with the International Brother-
hood of Teamsters, AFL–CIO.1 Case 14–CA–
21422
April 8, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 13, 1992, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Shelby Memorial Hospital
Association d/b/a Shelby Memorial Home, Shelbyville,
Illinois, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Michael Jamison, Esq., for the General Counsel.
Joseph A. Yocum, Esq., of Evansville, Indiana, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard in St. Louis, Missouri, on October 17, 1991,
on the General Counsel’s complaint, dated July 3, 1991,1
which alleges, in substance, that Shelby Memorial Hospital
Association d/b/a Shelby Memorial Home (the Respondent),
violated Section 8(a)(3) of the National Labor Relations Act,
by unlawfully discharging on or about April 24, 1991, and
thereafter refusing to reinstate, Michele Yvette Sands, its em-
ployee, because she joined, supported, or assisted Teamsters
Local Union No. 279 and because she engaged in concerted
activities protected by the National Labor Relations Act. The
complaint also alleges that Respondent terminated Sands’
employment because she gave testimony under the Act,
thereby violating Section 8(a)(1) and (4) of the Act. Re-
spondent’s timely answer, served July 16, 1991, admits cer-
tain allegations of the complaint, denies other and denies the
commission of any unfair labor practice.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to submit posthearing briefs
which have been carefully considered.
Upon the entire record, including the briefs, and upon my
most particular observation of the demeanor of the witnesses
as they testified, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
Respondent admits, and I find, that at all material times,
it has been and is, an Illinois not-for-profit corporation oper-
ating a skilled nursing home, having its office and place of
business in Shelbyville, Illinois, where it provides in-patient
medical and professional care services for the public. During
the 12-month period ending June 30, 1991, Respondent, in
the course and conduct of its business operations, derived
gross revenues in excess of $100,000 and, during the same
period, purchased and received at its Shelbyville, Illinois fa-
cility, products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Illinois. Re-
spondent concedes, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find, that
at all material times, Teamsters, Chauffeurs, Warehousemen
and Helpers Union No. 279, affiliated with International
Brotherhood of Teamsters2 (the Union), has been and is a
labor organization within the meaning of Section 2(5) of the
Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In or about late June or early July 1990, Respondent’s em-
ployees contacted the Union for purposes of gaining union
representation. By July 10, 1990, the Union filed a petition
with the Board for certification in Case 14–RC–10958.
Sands, the alleged discriminatee in the instant case, was a
prominent witness on behalf of the Union in Board-con-
ducted hearings of August 2, 1990, in that case. Thereafter,
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In both the 1990 representation hearings and the 1991 unfair
labor practice hearings, Sands was the only employee who sat at the
General Counsel’s table (Tr. 38, 44).
5 The doctor’s note is dated February 19, 1991 (R. Exh. 6). There-
fore, either the date of Sands-Glenn conversation is incorrect or
Sands was anticipating getting the note at the time of her conversa-
tion with Glenn.
Respondent engaged in various activities in opposition both
to the Union and to the employees organizing on its behalf
which opposition resulted in the Union’s (and Sands) filing
numerous unfair labor practice charges (Case 14–CA–20946).
Those unfair labor practice charges were consolidated and,
again, Sands was a witness prominently identified in sup-
porting the Union’s cause following the General Counsel’s
complaint in a consolidated hearing which took place on
April 1 through 3, 1991.4 Following a Board-conducted elec-
tion, the Union was certified on November 1, 1990. Re-
spondent, however, filed a request for review of the certifi-
cation issued by the Regional Director. The request for re-
view was subsequently denied by the Board.
As a result of the consolidated unfair labor practice hear-
ing, Administrative Law Judge John H. West, on July 15,
1991, issued his decision. On December 26, 1991, the Board
adopted his decision in its entirety at 305 NLRB 910. He
found that Respondent violated Section 8(a)(1) of the Act by
various acts of interrogation, threats of discharge, and in-
forming employees of various retaliatory acts, all because of
the employees’ support for the Union. In addition, Respond-
ent committed various acts in violation of Section 8(a)(1)
and (3) of the Act by, inter alia, denying previously sched-
uled pay raises, and by various other acts of retaliation in-
cluding the discharge and layoff of several employees.
With particular regard to Charging Party Sands, Judge
West found that Respondent engaged in various unlawful
acts, retaliating against Sands’ union activities and her testi-
mony at the Board proceedings. For instance, Sands’
undenied testimony discloses that a supervisor unlawfully
threatened her, violating Section 8(a)(1) of the Act, in de-
scribing to Sands her removal from the normal work sched-
ule and being placed on an ‘‘on-call list.’’ In addition, Judge
West concluded that Respondent, in violation of Section
8(a)(3), (4), and (1) of the Act, unlawfully removed Sands
from its work schedule and failed and refused to return her
to her substantially equivalent position until a further date;
failed and refused to consider Sands for a full-time position
that existed; and thereafter unlawfully laid off Sands and
failed and refused to return her to a substantially equivalent
position of employment. Judge West ordered appropriate
remedies, including immediate and full reinstatement of
Sands to the position she held or would have held but for
Respondent’s unlawful conduct. It also ordered that she be
made whole for loss of earnings suffered by virtue of Re-
spondent’s unlawful discrimination against her.
Charging Party Sands has a substantial history of employ-
ment with Respondent. She was employed as an assistant
helper in 1981–1982; as a nurses aide in 1982–1983 when
she quit because of pregnancy. She was thereafter rehired but
quit in February 1984 because of poor working conditions.
In the period commencing 1984, Sands attended school to
become a licensed practical nurse (LPN) and was again hired
by Respondent as an LPN in September 1987. She worked
until April 1988 when she again quit because of pregnancy.
Sands returned to employment with Respondent as an LPN
in March 1989 and was terminated in April 1991, which ter-
mination is the subject of the present unfair labor practice
litigation.
Thus, in March 1989, Sands returned to Respondent’s em-
ploy, originally on the 3 to 11 p.m. shift, but by the summer
of 1989, was on the day shift, working full time from 7 a.m.
to 3 p.m., ordinarily 40 hours per week (Tr. 34). By January
1991, Respondent, as Judge West found, was unlawfully dis-
criminating against Sands who was pregnant. She was unlaw-
fully reduced to ‘‘on call’’ status in January 1991. Her last
day of actual ‘‘call in’’ work was February 3, 1991. The
baby was delivered on March 6, 1991. On April 15, 1991,
Sands notified Respondent she had been released by the doc-
tor and was able to work (Tr. 114).
B. Charging Party’s Conversations With Respondent
1. The February 14, 1991 conversation with Florence
Glenn, director of nursing
By February 1991, Sands, more than 8 months pregnant
and expecting delivery on or about March 1, 1991, had last
been called to work on February 3, 1991 (Tr. 100). She
thereafter procured a doctor’s note in February 1991 (Exh.
6), because on or about February 5, 1991, Respondent,
through its agent Paula Chesser, on February 5, 1991, tele-
phoned Sands, stating that Administrator Bill Morgan, want-
ed Sands’ doctor’s note authorizing Sands to work during
late pregnancy in February.
By February 14, 1991, as above stated, as a result of Re-
spondent’s prior unlawful discrimination against her, Sands
was employed merely on an ‘‘on-call’’ basis. To be em-
ployed ‘‘on call’’ means that the employee is not employed
on a scheduled basis but merely is subject to being called to
irregular employment when Respondent has the need for
such an employee to work (Tr. 46). On February 14, 1991,
Sands had a conversation with Florence Glenn, the new di-
rector of nursing. Glenn asked Sands when she was going on
maternity leave and when she thereafter would be able to re-
turn to work. Sands told her that the baby was due on March
1 but that she had a doctor’s note stating that she could work
until delivery time (Tr. 47).5 In any event, Sands told Glenn
that she would be off work for about 6 weeks after delivery.
Glenn responded that that was ‘‘fine, that was what [she]
needed to know concerning this’’ (Tr. 47-48). Glenn said
nothing about the submission of a written leave of absence
application (Tr. 48). The baby was delivered on March 6 and
Sands considered herself to be on maternity leave (Tr. 49).
On April 1, 1991, as above noted, the unfair labor practice
hearings before Judge West commenced, with Sands being a
witness, called on behalf of the General Counsel, in support
of the Union’s (and her own) unfair labor practice charges
and the General Counsel’s consolidated complaint issued
thereon. Again, she was also the sole employee seated at the
General Counsel’s table. During a recess in that proceeding,
at counsel table, she had a conversation with a coemployee
(Dina Blye) which conversation was thereafter joined by
Hospital Administrator Bill Morgan (Tr. 50). In the course
of the conversation, Blye asked Sands when she was going
7SHELBY MEMORIAL HOME
6 Sands was given a copy of Respondent’s employee handbook
upon her rehiring in August 1989 (R. Exh. 3). Respondent’s Em-
ployee handbook (R. Exh. 4) contains the following pertinent ele-
ments:
At p. 25, regarding ‘‘Voluntary Termination’’:
An employee who vacates his position for 3 days or longer
without proper notification from his immediate supervisor shall
be considered as having terminated . . . .
At page 28, the Employee Handbook deals specifically with
‘‘Leave of Absence without pay’’:
After continuous employment of at least one year, full-time
employees are eligible to request a leave of absence for legiti-
mate cause such as extended illness, further education or mater-
nity leave.
Request for a leave of absence shall be in the form of a re-
quest form or letter addressed to the supervisor and submitted
at least 30 days in advance of the starting date of the proposed
leave . . . .
to return to work and Sands answered that she would return
in a couple of weeks when released by the doctor. Morgan
said nothing about Sands’ continued employment with Re-
spondent and, in particular, said nothing about her failure to
file a written request for leave of absence or her having
‘‘quit’’ her employment (Tr. 53).
2. Conversations and Respondent’s actions concerning
Sands having ‘‘quit’’
In January 1991, as a result of Respondent unlawfully
placing Sands on an ‘‘on call’’ basis of employment, Sands
applied for unemployment compensation. She thereafter
ceased applying for, or receiving, unemployment compensa-
tion in the period commencing with her delivery of the child
in March 1991 and ending with the period when, in April
1991, she was fit for return to work but had not been called
to work by Respondent. As a result of her reapplication for
unemployment compensation in April 1991, she received
written notification on April 24, 1991 (Tr. 56) from the Un-
employment Compensation Board that Respondent was con-
testing her latest claim on the ground that she had quit (Tr.
55). This was the first time that she had seen or heard Re-
spondent using the word ‘‘quit.’’
When she received the letter, she telephoned Administrator
Morgan, telling him of Respondent’s assertion that she had
quit. Morgan told her that Respondent assumed that she had
quit because she ‘‘didn’t fill out the medical leave papers’’
(Tr. 57). When Sands told him of her February 14 conversa-
tion with Nursing Director Florence Glenn and that Glenn
had never mentioned the necessity for filling out the leave
of absence application, Morgan told her that the requirement
was in the employee handbook.6
Sands told Morgan that she did not have every page of the
handbook memorized and asked Morgan if he had it memo-
rized. He said that he did not (Tr. 57). When she told him
that Nursing Director Florence Glenn had said nothing about
papers, Morgan said that Glenn should have mentioned it but
that she was a new nursing director. Sands said: ‘‘So it’s
okay for her not to know about ’em but it isn’t okay for
me?’’ Morgan said, ‘‘Well, no. That’s not right . . . she
should have told [you] about those papers and that . . . ev-
erything was worked out’’ (Tr. 57–58). Sands asked: ‘‘So ev-
erything’s fine, I am still employed?’’ Morgan responded:
‘‘Yes, everything’s fine. If Unemployment has any questions,
have them call me.’’ Morgan then directed Sands to tele-
phone Respondent’s head of personnel, Joan Bell (Tr. 58).
He told her to tell Bell that everything was fine and that Bell
should ‘‘notify Chicago [apparently the situs of an organiza-
tion which oversees Respondent’s Workman’s Compensation
and Unemployment claims]’’ (Tr. 58).
Sands then telephoned Personnel Director Joan Bell and
told her of having received the notice from unemployment
that she had quit; that she had then spoken to Administrator
Morgan; and that Morgan had told her that everything was
‘‘fine’’ and that Sands was still employed (Tr. 59). When
Bell told Sands that in order to return to work she would
have to come out to the nursing home and fill out some pa-
pers, Sands again telephoned Morgan, telling him what Bell
had just said. Morgan said that he didn’t know what Bell
was talking about; but that Morgan would telephone Bell and
then telephone Sands immediately. After a short while, Mor-
gan telephoned Sands and said that there were not any papers
for her to fill out but again told her that if the Unemploy-
ment Compensation Board had any questions, to call Mor-
gan. Sands then went to unemployment and told them what
had occurred. The Unemployment Compensation personnel
then telephoned Morgan in Sands’ presence. They were un-
able to reach him at the time (Tr. 60). On April 24, Unem-
ployment Compensation informed Sands that it would re-
sume payments. On or about May 14, still on ‘‘on-call’’ sta-
tus, Sands again called the nursing home because she just re-
ceived a letter (Tr. 64) from Unemployment Compensation
stating that Respondent was appealing its determination that
Sands had not voluntarily quit (Tr 61). Sands telephoned
Morgan. Morgan denied knowledge of the event (Tr. 65).
After first suggesting that Sands telephone Respondent’s Chi-
cago agent with regard to the appeal of the Unemployment
Compensation claim, Morgan directed Sands to speak with
Respondent’s employee, Julia Little, to determine who was
doing the scheduling of employees. This occurred because
Sands told Morgan that she was available for work. Sands
then telephoned Julia Little and told her that she was avail-
able for work. Little said that she was confused; that she
thought that Sands no longer worked for Respondent (Tr.
66). When Sands said that that was merely a rumor and that
she had spoken to Morgan who told her that everything was
‘‘fine,’’ Little said that Morgan had just told her that Sands
did not work for Respondent any longer (Tr. 66). Sands
again telephoned Morgan.
Sands told Morgan: ‘‘I think we have a problem here.’’
She reminded Morgan that he had just told her that he did
not know anything about the matter of the appeal and Julia
Little told her that she had spoken to Morgan who told Little
that Sands no longer worked for Respondent (Tr. 66). Mor-
gan said that he did not explain things correctly to her be-
fore; that he did not mean to ‘‘lead you one way or another,
but the bosses at the hospital feel like you quit because you
did not fill out the medical leave papers’’ (Tr. 66). When
Sands reminded him of their conversation, especially Sands
telling him of her conversation with Florence Glenn on Feb-
ruary 14 and the failure of Glenn to speak about the submis-
sion of any papers, Morgan again said: ‘‘Well, the bosses at
the hospital feel like you quit because you didn’t fill out the
forms.’’ When Sands asked: ‘‘You mean Mr. [Daniel]
Colby?’’ Morgan answered ‘‘Yes’’ (Tr. 67). Daniel Colby is
the chief executive officer over Morgan (Tr. 69). Thereafter,
Sands tried to reach Colby by phone but Colby never re-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Much of Morgan’s testimony was in the passive voice. Although
he was warned about the use of that locution which shielded and ob-
scured the party engaged in the action (Tr. 184; 187), he persisted
in testifying that he had been informed that Sands had resigned and
that things were ‘‘told to me.’’ Thus, Morgan was particularly inter-
ested, it seems to me, in shielding who was telling him various
things about Sands.
turned her phone call (Tr. 70). Respondent, nevertheless, has
dropped its appeal of the Unemployment Compensation
Board’s finding that Sands had not voluntarily quit (Tr. 72).
In the meantime, around April 15, Sands had telephoned
Respondent and advised clerk Paula Chesser that she had
been released by the doctor and was able to work. Chesser
said: ‘‘Okay’’ (Tr. 114). No Respondent representative ever
asked her to bring any doctor’s note identifying the date on
which she could return to work (Tr. 115). The record shows
that on at least one prior occasion, when Sands left Respond-
ent in order to have a baby, she resigned. Upon resignation,
she submitted a written resignation form. Sands testified,
without contradiction, that when she left to have the baby in
March 1991, she submitted no resignation slip because it was
not her intent to resign. Rather, she intended to resume em-
ployment after delivery of the baby.
C. Respondent’s Testimony
Respondent’s director of personnel, Joan Bell, testified that
she could not remember an employee not submitting a leave
of absence when the absence was for an extended period of
time (Tr. 148), and that employees are considered to have
quit if they did not contact the employer within 3 days from
the date the doctor released them to return to work or from
the date of the leave of absence (Tr 148). She conceded that
although she was present when Sands testified, she could not
remember a conversation with her concerning her employ-
ment or her leaving employment. She conceded that she may
have had such a conversation (Tr 145). Since she has no
recollection, I credit Sands.
Administrator Morgan testified that he had been told that
Sands had ‘‘voluntarily resigned’’ (Tr. 182). Morgan could
recall only telephone calls in June 1991 with Sands. He
could recall nothing prior to June (Tr. 186).7 Morgan did not
recall the substance of his conversations with Sands and, al-
though there was more than one conversation, he did not
know how many there were (Tr. 187). After first denying
recollection of any conversations with Sands prior to June,
he testified that he received a phone call from her that she
was ready to return to work (Tr. 189). In particular, he de-
nied having a recollection concerning exactly which of Re-
spondent’s agents or supervisors told him that Sands had vol-
untarily quit (Tr. 190). Such testimony was incredible. The
most he could testify to was that somebody in Respondent
told [him] that Sands had quit (Tr. 191). He then testified,
contradicting his prior testimony, that it was Daniel Colby,
the chief executive officer of the hospital (Tr. 191), who told
him, i.e., as Sands testified, Morgan said it was the ‘‘bosses’’
who said she quit (Tr. 66–67).
In substance, therefore, Morgan did not deny any of the
testimony elicited from Sands.
Nursing Director Glenn, who, as Judge West found, was
involved in retaliatory unfair labor practices directed at
Sands, testified that Sands had been on leave in February be-
cause of an injury to her tailbone. When, on inquiry, Sands
did not respond to a question of when she was returning
from that injury, Glenn testified that she assumed that Sands
had quit. In fact, however, the injury to Sands’ tailbone oc-
curred around Christmas of 1990 and thereafter Sands re-
turned to work with a doctor’s certificate (G.C. Exh. 5). The
injury to the tailbone had nothing to do with Sands’ subse-
quent absence from work due to pregnancy and delivery of
a baby in March 1991.
Glenn further testified that Sands did not thereafter speak
to her about a leave of absence; and that when clerk Chesser
telephoned Sands to determine whether she was going to re-
turn to work, Chesser told Glenn that Sands said that she
‘‘couldn’t come in,’’ without giving a reason (Tr. 210).
Thereafter, Glenn said she again asked Chesser to telephone
Sands to determine how long Sands was going to be off.
Glenn testified that she needed to know this because it was
necessary for proper scheduling (Tr. 211–212). Glenn told
Chesser to direct Sands to provide a doctor’s note, because
of the necessity of scheduling, to say when Sands would re-
turn to work (Tr. 212–213). Glenn testified that she had no
recollection of whether she herself spoke to Sands directly
about returning to work (Tr. 14).
With regard to written request for leaves of absence, the
testimony and Respondent’s records showed that, on some
occasions, Respondent did not regard employees as having
‘‘quit’’ even though the employee did not submit a written
leave of absence form (Toothman, no leave of absence re-
quest regarding her absence due to surgery in the period No-
vember 5, 1990, to January 22, 1991) (Tr. 154; R. Exh. 10).
The record also establishes that other employees were not
considered to have ‘‘quit’’ for failing to observe the rule re-
quiring that written leaves of absence be submitted 30 days
before leave (Lynch, R. Exh. 12; Pitzman, R. Exh. 11; Fish-
er, R. Exh. 7).
Finally, Glenn testified that although Sands had been em-
ployed from time to time for many years by Respondent,
Glenn never telephoned Sands directly because she was too
‘‘busy’’ (Tr. 223). She also testified that she never heard that
Sands wanted to return to employment (Tr. 224).
Discussions and Conclusions
A. With regard to credibility, I observed that Sands was
a witness whose very self-interest, apparently, caused her to
have specific recollections of specific events. I found her to
be a credible witness for the most part, notwithstanding that
she may have been mistaken in dating her conversation with
Nursing Director Glenn concerning her having a doctor’s cer-
tificate. On the other hand, I found Administrator Morgan’s
testimony, clothed in the mystery of the passive voice, even
when directed at Sands’ testimony, to be half-hearted and un-
convincing. It was clear to me, that it was not he, the Ad-
ministrator of the entire Memorial Home, who believed
Sands had quit. As he told Sands, it was the ‘‘bosses’’ who
said that. Likewise, Glenn, who participated in unfair labor
practices directed at Sands, was an unconvincing witness
with a lack of recall on matters involving her and Sands.
In particular, Respondent not only failed to call Chesser,
its ward clerk, who actually had spoken with Sands concern-
ing how long Sands would be away and whether Sands de-
sired to return; but also failed to present the chief corporate
executive officer, Daniel Colby. It was Colby who, on this
9SHELBY MEMORIAL HOME
record, apparently made the ‘‘quit’’ determination and trans-
mitted that determination to Morgan: that Sands’ failure to
submit a written leave of absence request led to the assump-
tion that Sands had quit. Since Respondent’s records are not
necessarily consistent with the assumption, Colby’s testimony
might well not have supported it. His absence was unex-
plained and I draw an adverse inference from his absence.
I was particularly dissatisfied with Glenn’s testimony con-
cerning her conversations or the lack of such conversations
with Sands; particularly Sands’ February pregnancy rather
than a December injury to her tailbone that caused her to be
absent. In my judgment, by February, with Sands 8-1/2
months pregnant, her pregnancy should have been obvious to
Glenn as a reason for her future absence. I was also not im-
pressed by Glenn’s failure to telephone Sands at home to de-
termine whether and when she was going to return to em-
ployment. In this regard, Judge West found that Glenn had
telephoned another employee at home only a month before
Glenn had failed to similarly telephone Sands at home. (See
Judge West’s decision.)
B. The evidence is undisputed that Respondent resented, in
general, the union activities of its employees with regard to
the Union’s organizational attempt commencing in December
1990; and, in particular, resented and had animus against
Charging Party Sands because of her union activities and be-
cause of her testimony in support of the Union at two NLRB
proceedings. Judge West’s Decision and the Board’s Order
cannot be read otherwise.
C. In view of the above findings with regard to credibility
and Respondent’s union animus, I further conclude that the
General Counsel presented a prima facie case of Respondent
having unlawfully terminated Sands, as alleged, on or about
April 24, 1991, when Sands determined from letters from the
Unemployment Compensation Commission that Respondent
took the position that Sands had quit at that time. In support
of that prima facie case, along with Respondent’s concession
that it opposed the Union, that it knew that Sands was active
on behalf of the Union and because of the uncontroverted
evidence that Sands twice testified in these NLRB pro-
ceedings, I also conclude that Sands had a conversation, on
or about February 14, 1991, with Nursing Supervisor Glenn.
In that conversation while Sands had been reduced, unlaw-
fully, to ‘‘on call’’ status, and when she was 8-1/2 months
pregnant, Glenn asked Sands when she was going on mater-
nity leave and when she would be able to return to work.
In that conversation, Sands told her that the baby would be
due around March 1, 1991, and that she would be off for 6
weeks thereafter. The necessary inference is that she would
return after the 6 weeks. When Respondent thereafter took
the position that Sands, by not returning, ‘‘quit,’’ I conclude
that in view of the findings of knowledge, animus, and timing
(she testified April 1–3 before Judge West and by April 24,
Respondent was opposing her compensation claim based on
her ‘‘quit) that the General Counsel has proved a prima facie
case of unlawful discharge: that by using the word ‘‘quit,’’
Respondent had terminated her employment unlawfully.
In further support of the prima facie case, I find that her
conversation with Administrator Morgan established that
Morgan agreed that Sands’ February 14, 1991 conversation
with Nursing Supervisor Glenn formed a sufficient basis for
Respondent accepting Sands’ oral request for leave of ab-
sence. Thus, when Sands confronted Morgan on the phone,
upon her receipt of the Unemployment Compensation letter
on April 24 (Tr. 56), and when she told him about the use
of the word ‘‘quitting,’’ Morgan told her that her failure to
fill out the form led to the assumption that she had quit (Tr.
57). When Sands thereafter remonstrated with him about her
failure to file the papers and Morgan admitted that, Glenn,
a new nursing director, should have told her about the pa-
pers, Morgan admitted that Respondent’s position was not
‘‘right’’ (Tr. 57). He further admitted that Glenn should have
told her about the submission of papers and that everything
was to be worked out. In addition, in response to Sands
questioning him whether everything was ‘‘fine’’ and whether
she was ‘‘still employed,’’ Morgan said: ‘‘Yes, everything’s
fine. If unemployment has any questions, have them call
me’’ (Tr. 58). In Sands’ credited testimony on this point, I
find that Morgan reaffirmed that Sands’ failure to submit a
written application was to be waived and that she was still
to be considered Respondent’s employee. Thus, Respondent
has taken inconsistent positions in its defense that she quit,
thus undermining that defense, and, in the presence of a
prima facie case, supporting an inference of unlawful motive.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 221 (10th
Cir. 1964).
Respondent’s Defenses
D. The Testimony Discloses No Sands’ ‘‘Quit’’
Respondent’s principal defense is that Respondent could
lawfully assume that Sands had ‘‘quit’’ because of her failure
to submit, under Respondent’s employee handbook rule, a
written request for a leave of absence. I have found, imme-
diately above, that in Sands’ conversations with both Nursing
Director Glenn and Administrator Morgan, she explicitly de-
scribed her plan for limited absence and that both Glenn
(that’s ‘‘fine’’) and Morgan (‘‘she [Glenn] should have told
[you] about those papers and that was okay . . . everything
was worked out . . . yes everything’s fine’’) demonstrated
that Sands’ failure to submit the written application was not
inconsistent with her desire to return as an employee. In
short, Sands had provided Glenn with a specific statement as
to when she would return with Glenn failing to mention a
written leave request; and Morgan told her that she was still
a Respondent employee. Therefore, there is no ‘‘quit’’ nor a
factual predicate on which an inference of ‘‘quit’’ could rest.
E. Sands’ Failure to Submit a Written Leave of Absence
Request Does not Run Afoul of Respondent’s
Handbook Rule
Respondent’s position that it assumed Sands quit admit-
tedly rests on Sands’ failure to observe the Employee Hand-
book rules: failure to make a written application for a leave
of absence and failure to notify Respondent within 3 days of
being off work to report that absence. Thus, Respondent’s
brief asserts:
Respondent had a handbook in effect that required that
employees make written applications for leaves of ab-
sence of any length, including maternity leaves; and
that if an employee was off-work the employee call Re-
spondent within 3 days of the first date of being off
work . . . .
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sands credibly testified, without Administrator Morgan’s
contradiction, that he repeatedly told her that his ‘‘bosses at
the hospital feel like you quit because you did not fill out
the medical leave papers . . .’’ (Tr. 66). Again, after telling
her that he perhaps did not explain Respondent’s position
correctly and after again hearing that Sands, on February 14,
had heard nothing of an obligation to submit leave papers
from Nursing Director Glenn, Morgan again told her: ‘‘Well,
the bosses at the hospital feel like you quit because you
didn’t fill out the forms’’ (Tr. 67).
It thus appears, and I conclude, that the cornerstone of Re-
spondent’s assumption that Sands quit was her failure to exe-
cute a written ‘‘leave of absence without pay’’ request as it
appears in the employee handbook (R. Exh. 4, 28).
The handbook obligation to submit a written request for
leave of absence, of course, did not apply to Sands in the
period January through April 1991. The text of the rule is:
After continuous employment of at least one year, full-
time employees are eligible to request a leave of ab-
sence of legitimate cause such as . . . maternity.
The short of the matter, however, is that commencing Jan-
uary 1991, Sands was not a full-time employee. Therefore
whether or not she was ‘‘eligible’’ to request a leave of ab-
sence, she was certainly under no obligation to make such
a request because she was not a full-time employee.
Although Nursing Director Glenn had no recollection of
whether Sands was a full-time employee or an on-call em-
ployee (Tr. 217) at the time that Respondent assumes she
quit (in or about April 1991), Judge West found (ALJ deci-
sion, slip op. 14–15) that Sands was placed on ‘‘on call’’ sta-
tus on January 1, 1991; and that up to the time of his hearing
(April 1–3, 1991), she worked a total of 6 to 8 days. Judge
West’s finding is consistent with Sands’ uncontradicted and
credited testimony at the instant hearing that in the period
January through February 1991, she was called to work dur-
ing her ‘‘on call’’ status no more than six or eight times (Tr.
246).
Thus, insofar as Respondent’s defense (an ‘‘assumed’’
quit) is based upon Sands’ failure to meet the Handbook ob-
ligation to submit a written request for leave without pay, as
Morgan’s repeated testimony underlines, and as Respondent’s
brief insists, that defense of ‘‘failure to comply’’ is without
basis under Respondent’s own rules. For the obligation to
submit a written request for leave of absence relates only to
‘‘full-time employees’’ and Sands, in a mere ‘‘on call sta-
tus,’’ was not a full-time employee.
F. Respondent’s Defense, That it Assumed That Sands
Quit, is Otherwise Unsupported by the Facts
(1) Sands testified, and Morgan did not deny, that Sands
told him that in her February 14 conversation, Nursing Di-
rector Glenn failed to tell her of necessity for submitting pa-
pers (Tr. 67). Sands told Morgan that Sands had informed
Nursing Director Glenn that she would be off for 6 weeks
starting with the delivery of her baby and that Glenn said
‘‘fine’’ and that was all she needed to know. In the General
Counsel’s cross-examination, Morgan repeatedly attempted to
avoid answering the question whether an oral request for
leave of absence (which Sands, in substance, described as
having made to Nursing Director Glenn on February 14)
would suffice as a lawful request within Respondent’s rules
(Tr. 199 et. seq.). Ultimately, however, Morgan admitted that
an oral request for leave of absence would be considered a
request for a leave of absence within Respondent’s rules (Tr.
201–202). After making that admission, and mindful of
Sands’ telephone conversation with him describing her Feb-
ruary 14 conversation with Nursing Director Glenn, Morgan
admitted that he never asked Glenn whether Sands had asked
her for a leave of absence or otherwise sought to discover
whether she made such a request (Tr. 204). Such Morgan
testimony is consistent with his repeated assertions, accord-
ing to Sands’ testimony, that it was Respondent’s ‘‘bosses’’
who felt that she had quit because she did not fill out med-
ical leave papers (Tr. 66, 67). In short, by the time of these
April 1991 conversations between Sands and Morgan, Mor-
gan knew that Respondent’s (Colby’s) position was that she
had quit and that there was no reason to investigate whether
Sands actually had such a conversation with Nursing Direc-
tor Glenn and whether Sands had given Glenn notice of a
request for maternity leave in the February 14 conversation.
It was a matter of indifference to Morgan because he knew
that Respondent had already decided to terminate Sands’ em-
ployment by ‘‘assuming’’ that she had quit.
(2) Nursing Director Glenn participated in the earlier un-
lawful discrimination against Sands, as noted in Judge
West’s decision. Her testimony in the instant hearing was not
impressive, especially her lack of recollection concerning
whether Sands was merely ‘‘on call’’ or a full-time employee
in the period January through April 1991 (Tr. 217). She testi-
fied repeatedly that she told ward clerk Chesser to telephone
the absent Sands because she wanted to make sure where
Sands would fit in Respondent’s scheduling of LPNs. She
admitted, however, that an employee who was on ‘‘call’’ is
not on the schedule (Tr. 232); and that if Sands were on ‘‘on
call’’ status, there would be no need to call her for sched-
uling purposes (Tr. 232). I do not credit her further testimony
that even though Sands might be ‘‘on call’’ status, she want-
ed to know if Sands was going to be able to return to work
(Tr. 233). I do not credit Glenn because her testimony openly
confused Sands’ maternity and pregnancy absence in March
1991 with Sands’ late December 1990 injury to her tailbone.
In short, Glenn repeatedly testified that she had Chesser
telephone Sands in February or March 1991 because it was
necessary to determine Sands’ date of return for scheduling
purposes. There was no need for such a telephone call in
view of the fact that Chesser was on ‘‘on call’’ status and
was not part of any scheduling. I was also dissatisfied with
Glenn’s testimony that she herself did not telephone Sands
(to discover whether Sands desired to return after her mater-
nity situation) because she was ‘‘too busy.’’ She was not too
busy to personally telephone an employee at home con-
cerning her work status, which telephone call occurred on
January 4, 1991, a few weeks before Chesser allegedly called
Sands (ALJ decision).
(3) As the General Counsel observes, Respondent’s as-
sumption that Sands quit constituted disparate treatment com-
pared with other employees who failed to submit a written
request for a leave of absence. Thus employee Brenda
Toothman was absent for an 8-week period (November 5,
1990 through January 22, 1991) shortly before Sands’ ab-
sence and failed to submit a leave of absence form for this
period (Tr. 154; R. Exh. 10). Yet, Toothman was neither
11SHELBY MEMORIAL HOME
8 The employee handbook, p. 28, provides:
Request for leave of absence shall be in the form of a request
form or letter addressed to the supervisor and submitted at least
30 days in advance of the starting date of the proposed leave.
considered to having ‘‘quit’’ for failing to submit the written
request nor was she discharged for failure to meet any such
obligation. Similarly, other employees failed to meet the re-
quirements of the employee handbook with regard to the 30-
day advance notice requirement.8 Other employees, as Ad-
ministrator Morgan admitted, failed to follow the handbook
policy of 30 days’ advance notice and were neither termi-
nated nor assumed to have ‘‘quit’’ (Kimberly Smith, Tr.
197–198; Volkman, Tr. 198). Morgan admitted that there
were exceptions to the 30-day advance notice policy (Tr.
198–199) but failed to suggest why an exception was not
made with regard to longtime employee Sands.
(4) Respondent argued, and submitted evidence to support
the position, that many of its employees submitted written re-
quests for leave without pay under various circumstances.
Respondent’s brief admits, however, that its procedures relat-
ing to written applications for leaves of absence of length
were only ‘‘generally followed by the employees (R. Br. 2).
It seems to me, nevertheless, that Respondent’s argument and
the supporting evidence misses the point. The issue is not
whether employees often submitted written requests for leave
for maternity and other reasons. Rather, the issue is whether
any employee was ever discharged or was ‘‘assumed’’ to
have ‘‘quit’’ because of a failure to submit such a written
request for leave. Respondent produced not a single example
of any employee who was ever discharged or was assumed
to have ‘‘quit’’ because of a failure to submit a written or,
indeed, an oral request for a leave of absence. In short, the
precise issue is not whether employees generally submitted
written requests for leaves of absence; rather, the issue is
whether Respondent ever terminated employees for failure
for having failed to do so. There was no proof submitted on
this point. The closest the record comes to recognizing this
issue was a stipulation entered into by the parties: that from
January 1, 1990, to the present time (the time of the instant
hearing, October 17, 1991), Respondent has not discharged
or considered employees as having quit for failing to submit
written requests for leaves of absence (Tr. 10).
(5) Sands was twice prominently seated at the General
Counsel’s table and a witness in the representation case and
in the April 1–3 unfair labor practice proceedings before
Judge West. During the April 1–3 hearings, she spoke with
Administrator Morgan. He never suggested to her at that
time that Respondent took the position that she had quit as
a result of failing to submit a written request for absence. It
was only after her testimony that Respondent took the posi-
tion that she quit, that position first appearing in its April 24
contest of Sands’ application for unemployment compensa-
tion benefits. Thus, on this record, it would appear, and I
find, that Respondent’s position that she quit was not known
to Morgan during the April 1–3 unfair labor practice pro-
ceedings but was the position taken thereafter in view of
Sands’ prominent role and testimony at those April 1991 pro-
ceedings.
Lastly, I conclude that Respondent’s conduct in the instant
case, particularly in its assumption (that Sands quit) first
made known on or about April 24, 1991, is merely a con-
tinuation of Respondent’s unlawful discrimination against
Sands. In the instant case, I have found that the General
Counsel proved a prima facie case that Sands’ union activi-
ties and her testimony and conduct at Board proceedings was
‘‘a motivating factor’’ in Respondent’s decision to terminate
her employment. I further conclude that Respondent has
failed to carry its burden, to prove by a preponderance of
credible evidence, that it rebutted the prima facie case, NKC
of America, 291 NLRB 683 (1988), or that it would have
taken the same action notwithstanding Sands engaging in
union activities and in testifying and appearing at Board pro-
ceedings. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 1989 (1982);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). The instant facts demonstrate a continuing serious
statutory violation of Section 8(a)(3). I have, of course, re-
lied, in part, on Judge West’s decision and the Board Order
above. Tama Meat Packing Corp. v. NLRB, 575 F.2d 661
(8th Cir. 1978). Respondent’s defense—failure to submit a
written leave request—is simply unpersuasive. Equitable Gas
Co., 303 NLRB 925 (1991).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Sections 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. Respondent violated Section 8(a)(3) of the Act by ter-
minating the employment of Michele Yvette Sands, on or
about April 24, 1991, because of her activities on behalf of,
her membership in, and her sympathy for Teamsters Local
Union No. 279, International Brotherhood of Teamsters, a
labor organization, thereby unlawfully discriminating against
her by discouraging such membership, support, and activities.
4. Respondent violated Section 8(a)(4) of the Act by ter-
minating the employment of Michele Yvette Sands on or
about April 24, 1991, because of her appearance at and the
testimony she gave at the NLRB unfair labor practice pro-
ceedings of April 1–3, 1991, in Charleston, Illinois.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action necessary to
effectuate the policies of the Act. I shall recommend to the
Board that Respondent be required to offer immediate and
full reinstatement to Michele Yvette Sands in all the jobs
that she would have held but for Respondent’s unlawful and
discriminatory conduct against her as described in the Board
Order, 305 NLRB 910, adopting the decision of Judge John
H. West, issued in JD–181–91, July 15, 1991, or, if those po-
sitions do not exist, to substantially equivalent positions,
without prejudice to her seniority and other rights or privi-
leges previously enjoyed. I shall further recommend that Re-
spondent be ordered to make her whole for any loss of earn-
ings and other benefits suffered as a result of Respondent’s
unlawful discrimination against her. Backpay shall be com-
puted in the manner prescribed in F. W. Woolworth Co., 90
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.
10 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.’’
NLRB 289 (1950), with interest as set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Shelby Memorial Hospital Association
d/b/a Shelby Memorial Home, Shelbyville, Illinois, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, terminating the employment of, or unlaw-
fully discriminating against any employee because the em-
ployee engages in activities on behalf of Teamsters, Chauf-
feurs, Warehousemen and Helpers Local Union No. 279, af-
filiated with the International Brotherhood of Teamsters, or
any other labor organization, or engages in other concerted
activities protected by Section 7 of the Act.
(b) Discharging, terminating the employment of, or other-
wise unlawfully discriminating against any employee because
the employee appears at or testifies in a proceeding before
the National Labor Relations Board or gives testimony pur-
suant to the provisions of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Michele Yvette Sands immediate and full rein-
statement to all former positions she would have had but for
Respondent’s unlawful conduct against her, as specified in
the decision of Judge John H. West in his decision JD–181–
91, issued July 15, 1991, as adopted by the Board, 305
NLRB 925, and herein, or, if those positions do not exist,
to substantially equivalent positions, without prejudice to her
seniority or other rights or privileges previously enjoyed, and
make her whole for any loss of earnings and other benefits
she may have suffered as a result of the unlawful discrimina-
tion against her in the manner set forth in the remedy section
of this decision.
(b) Remove from its records Respondent’s unlawful termi-
nation of Michele Yvette Sands, on or about April 24, 1991,
and notify her in writing that this has been done and that it
will not be used as a basis for future personnel actions
against her.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Shelbyville, Illinois facility (Shelby Memo-
rial Home) copies of the attached notice marked ‘‘Appen-
dix.’’10 Copies of the notice, on forms provided by the Re-
gional Director for Region 14, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, terminate the employment of, or
otherwise unlawfully discriminate against any employee be-
cause such employee engages in activities on behalf of
Teamsters, Chauffeurs, Warehousemen and Helpers Union
No. 279, affiliated with the International Brotherhood of
Teamsters, or any other labor organization.
WE WILL NOT discharge, terminate the employment or oth-
erwise unlawfully discriminate against any employee because
such employee testifies at an unfair labor practice or other
hearing of the National Labor Relations Board or otherwise
gives testimony pursuant to the terms of the National Labor
Relations Act.
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 Michele Yvette Sands immediate and full
reinstatement to all former jobs to which she would have
been entitled, as described in the decision of Administrative
Law Judge John H. West, JD–181–91, issued July 15, 1991,
but for our unlawful discrimination against her, or, if those
jobs or positions no longer exist, to substantially equivalent
positions, without prejudice to her seniority or other rights or
privileges previously enjoyed, and WE WILL make her whole
for any loss of earnings and other benefits she may have suf-
fered as the result of our discrimination against her.
WE WILL remove from our files any reference to the April
24, 1991 discharge of Michele Yvette Sands and notify her,
in writing, that this has been done and that evidence of this
unlawful discharge will not be used against her as a basis for
future personnel actions.
SHELBY MEMORIAL HOSPITAL ASSOCIATION
D/B/A SHELBY MEMORIAL HOME