Star Of David Convalescent Home

National Labor Relations Board - Board Decisions

Sep 23, 1985

276 N.L.R.B. 308 (N.L.R.B. 1985)

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hillhaven Corporation, d/b/a Star of David Conva
lescent Home and Service Employees Interne
tional Union, Local 475, AFL-CIO-CLC Case
1-CA-21984
23 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 26 March 1985 Administrative Law Judge
Donald R Holley issued the attached decision The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings, findings, and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
Fay Kaufman Esq counsel for the General Counsel
Eric J Nadworny Esq of Lexington Massachussetts and
Richard W Schey Esq (Jackson Lewis Schnitzler &
Krupman) of New York New York for the Respond
ent
Michael Gallagher for Local 1475
DECISION
STATEMENT OF THE CASE
DONALD R HOLLEY Administrative Law Judge On
an original charge filed by United Labor Unions Local
1475 on April 12 1984 1 Region 1 of the National Labor
Relations Board issued a complaint on May 21 in which
it alleged in substance that Hillhaven Corporation
d/b/a Star of David Convalescent Home (the Respond
ent) violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by terminating employee
Minnie Perkins on April 10 1984 and by unlawfully in
terrogating and threatening an employee on April 5
1984 Respondent filed a timely answer denying it had
violated the Act as alleged Thereafter on September 4
the Region issued an amendment to complaint which in
dicated the Union s name had been changed to Service
Employees International Union Local 1475 AFL-CIO
CLC alleged that Ann Kilgallen is a supervisor within
the meaning of the Act and alleged that Respondent
through the conduct of Gail Forde violated Section
8(a)(1) of the Act during the month of October 1983 By
' All dates herein are 1984 unless otherwise indicated
timely answer Respondent denied the allegations set
forth in the September 4 amendment to the complaint
The case was heard in Boston Massachusetts on Sep
tember 6 and 7 and October 29 30 and 31 All parties
appeared and were afforded full opportunity to partici
pate On the entire record and from my observation of
the demeanor of the witnesses when they gave testimo
ny I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent a Massachusetts corporation with an
office and place of business at 1100 V F W Parkway
West Roxbury Massachusetts is engaged in the oper
ation of a nursing home Its annual gross income exceeds
$100000 and it annually purchases goods valued in
excess of $50 000 from points outside the Commonwealth
of Massachusetts It is admitted and I find that Re
spondent is an employer within the meaning of Section
2(2) (6) and (7) of the Act
II STATUS OF LABOR ORGANIZATION
The original charge herein was filed by United Labor
Unions Local 1475 About June 8 1984 the Charging
Party became an AFL-CIO affiliate and it is now known
as Service Employees International Union Local 1475
AFL-CIO CLC It is admitted and I find that United
Labor Unions Local 1475 was a labor organization
within the meaning of Section 2(5) of the Act until June
8 1984 and that Service Employees International Union
Local 1475 AFL-CIO CLC is a labor organization
within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Star of David Convalescent Home is a 146 bed
nursing home which was obtained by the Respondent in
early 1983 Physically the facility is divided into four
sections i e, stations A, B C and D Stations A and C
are on the first floor of the facility and ambulatory rest
dents who merely require medication and supervision are
housed there Residents who are incontinent and require
24-hour attention are housed at stations B and D which
are located on the second floor of the facility
At the time of the hearing Respondent utilized ap
proximately 120 employees to operate the facility Those
employees worked on three different shifts i e the 7
am to 3 p m shift the 3 to 11 pm shift and the 11
p in to 7 am shift Minnie Perkins the alleged discn
mmatee in the instant case was employed on the I 1 p in
to 7 am shift As that shift performs during a period
when the residents spend most of their time sleeping it is
normally staffed with a nurse and a nurses aide and/or
an orderly on stations A and C and a nurse and three
nurses aides (or two nurses aides and an orderly) on sta
tions B and D The record reveals that at all times mate
nal the 11 p in to 7 am shift employees were super
vised by the administrator Richard Sabounjian the di
276 NLRB No 39
STAR OF. DAVID CONVALESCENT HOME 309
rector of nurses, Janet Fuller, and the shift supervisor,
Gail Forde.2
At or near the time that Respondent obtained owner-
ship of the facility in early 1983, Local 1475 was asked
by alleged discriminatee Perkins to attempt to organize
the facility's employees. Perkins testified without contra-
diction that during the organization campaign, which ex-
tended from-:early 1983 to June 14, 1983, the date an
NLRB election was held at the premises, she held nu-
merous employee meetings in her home, caused employ-
ees to sign authorization cards, distributed union litera-
ture at the facility, attended a representation case hearing
held in early May, and acted as one of the Union's ob-
servers at the NLRB election. During his testimony, Sa-
bounjian admitted he was aware that Perkins had served
as a union observer at the election, and he admitted he
was aware that the employee was a union supporter. The
Union lost the election. 3
B. The Animus -Testimony
The General Counsel claims that Respondent's super-
visors and its administrator harbored considerable animus
against employee Perkins because she openly supported
the Union during the 1983 organization campaign. To
prove her assertion, she caused Perkins to describe al-
leged conversations she had with Supervisor Ann Kilgal-
len and Administrator Sabounjian outside the 10(b)
period, and alleged conversations she had with Supervi-
sor Gail Forde and Administrator Sabounjian within the
10(b) period. The alleged conversations with Forde are
alleged as independent violations of Section 8(a)(1) of the
Act. The individual conversations are treated below.
1. The alleged conversations with Supervisor Ann
Kilgallen
It is undisputed that in April 1983, Perkins was a
nurses aide assigned to work on station A on the 11 to 7
shift. Ann Kilgallen was the shift supervisor.
Perkins testified that at some unstated time in April,
when she reported for work wearing a -union button, Kil-
gallen told her she had better not let Sabounjian see her
wearing the button, and she had better not talk to other
employees about the Union or pass out flyers because if
she did Kilgallen would report it to Sabounjian and Per-
kins would be fired.
As noted, supra, Perkins was one of the Union's ob-
servers at the June 14, 1983 election. She testified that in
August, after the election, Kilgallen told her she was
going to "get it" for sitting down there as an observer;
that they were going to get her out of there and Franklin
(the other union observer) too. Perkins testified that Kil-
gallen went on to say Perkins had pulled Franklin into it;
that they had to almost pull him downstairs; that he was
frightened stiff; and "they're going to get both of you
out of here."
2 Respondent admits, and I find , that Sabounjian , Fuller, and Forde, as
well as Ann Kilgallen , the 3 to; I I p in . supervisor , were, at all times ma-
tenal, 'supervisors and agents of Respondent within the meaning of Sec.
2(11) and (13) of the Act.
a The Union received 34 votes; 54 votes were cast against it See G C
Exh 2(c).
When she appeared as •a witness, Kilgallen- was asked
if she ever told Minnie Perkins the nursing home was out
to get or fire her, and whether she told Perkins she
should not be passing out flyers or talking to other em-
ployees about the Union. She answered, "No." Kilgallen
was not asked whether she observed Perkins wearing a
union button or made any comment about the wearing of
union buttons, and she was not asked whether she made
any comments to Perkins, concerning the role Perkins or
employee Franklin played during the June 14, 1983 elec-
tion. Perkins' description of the election-related discus-
sion had the "ring of truth." In the circumstances de-
scribed, I credit Perkins' version of the April and post-
election conversations. •
2. The alleged conversations with Administrator
Sabounjian
Perkins testified Sabounjian conversed with her pri-
vately about the Union one night in May when he met
with 11 p.m. to 7 a.m. shift employees to discuss the
Union. Perkins claims that after the meeting Sabounjian
called her to the office where he told her he had heard
rumors she was involved with the Union and he wanted
to know who else was involved. She claims he told her
if she was caught talking to other employees or to union
officials on the premises she would be fired. In addition,
the employee testified that in February 1984, Sabounjian
met with 11 p.m. to 7 a.m. shift employees one night to
discuss a situation involving another employee, and that
she requested a private audience with him afterwards.
According to Perkins, when she met with Sabounjian
privately, she asked him why Gail Forde wanted to give
her a warning about a timecard,4 and why Forde was
constantly on her back. She claims Sabounjian replied he
had given Gail (Forde) and Janet (Fuller) authority to
fire her if they found out she was doing anything wrong.
She testified she asked if that was all he thought of her,
and claims he answered, "Yes."
Sabounjian testified he met with everyone on the 11
p.m. to 7 a.m. shift each month, but denied that he met
with Perkins individually in May 1983. He specifically
denied that he interrogated Perkins or any other employ-
ee about their union activity.
With respect to the February 1984 situation, Saboun-
jian admitted that he met privately with Perkins after
meeting • with the 11 p.m. to 7 a.m. shift concerning a
problem experienced by aide Nicky Petit-Frere. Saboun-
jian testified that Perkins asked him, when they went to
his office, if someone was out to get her. He claims he
answered no. He claims they then discussed a situation in
which a nurse stayed until 11:20 p.m. waiting for Minnie,
but Minnie's timecard was punched in at 11 p.m. and she
had claimed she was in the building working with a pa-
tient, while the nurse claimed she was not in the build-
ing. According to Sabounjian, no action was taken
against Perkins, but he told her, and he claims she
4 The record reveals Perkins reported for work late on occasion and a
warning was prepared in February when her timecard was punched in at
11 p in but she could not be located Forde credibly testified the warning
was destroyed after the situation was investigated
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed, that if anybody was punching another person's
timecard, they would be.terminated immediately.
At the time of the hearing, Sabounjian was'no longer
employed by Respondent. He is an intelligent individual
,and I gained the impression when he testified that he
sought to tell the truth as he recalled it. During the hear-
ing, the General Counsel placed in evidence as General
Counsel's Exhibits 14(a) through (1) a number of cam-
paign letters which were signed by Sabounfian and were
distributed during the election campaign. Those docu-
ments were carefully phrased and suggest that Saboun-
jian knew during the campaign what he could.lawfully
say in an attempt to persuade employees to vote against
the Union. I credit his testimony where it conflicts with
the testimony given by Perkins.
3. The alleged conversations with Supervisor Gail
Forde
The complaint alleges that Respondent, -through Gail
Forde's conduct and actions, engaged in four individual
violations of,Section 8(a)(1) of the Act. Summarized, the
allegations are:
1. About October 1983, Respondent, acting through
Gail Forde, at the West Roxbury facility, told an em-
ployee that Richard Sabounjian had instructed her to fire
the employee because of union activity (par. 8(a)).
2. About late October 1983, Respondent, acting
through Gail Forde, asked an employee if, she, had
thought of going to. another•,facility, and told this same
employee that she had too much influence (par. 8(d)).
3. About April 5, 1984, Respondent, ,acting through
Gail Forde, threatened an'employee that the employee
would be fired if seen talking to union officials or passing
out union material-(par. 8(c))._
4. About April 5, 1984, Respondent, acting through
Gail Forde, interrogated an employee about union activi-
ty (par. 8(b)). • - _
In support of the allegations. summarized above, Per-
kins testified that about October 3, 1983, Gail Forde
became the supervisor on the 11 p.m. to 7 a.m. shift and
Kilgallen transferred to the 3 to 11 p.m. shift. Perkins
testified that, as soon as Forde became her - supervisor,
she told her:
Minnie, I was brought on this shift to get rid of
you, to fire you. That's orders from Richard Sa-
.bounjian.
Perkins claims. that, when Forde made the above-de-
scri bed statement, she asked why she would file her as
she did herI work. She claims Forde replied:'
Yes, but you know your activities with the Union
and you know the pull, you have with other, em-
ployees. I'm here to get you out. You better walk
light and' you better not be- caught doing anything
wrong. - -
About the same time, Perkins claims Forde told her they
had had -a meeting and- Sabounjian had told the nursing
staff anyone who could get Perkins out of there or fire
her without having any problems would get a bonus.
At some later time in -October, Perkins claims Forde
asked her if she had considered going to another facility
to work. Perkins claims she asked why she should and
indicated- that,,Forde told her. she. had been very active
and had -a lot of pull on the employees and they wanted
her out of there and she wanted her job.
Perkins testified that on April 5, -at the beginning of
her shift, Forde asked her: "Minnie, what is this •I hear
about this union?" Perkins says she responded:' "Gail,
listen, it is 11 :15 and I say you are violating a labor law."
She claims Forde then- stated:. "[W]ell I can'.t help it if
I'm violating labor law ..: I have .to know what is
going on about the union." After she allegedly told
Forde there was nothing she could ..tell • her, Perkins
claims that Forde accompanied her on her rounds for
about one-half, hour and assisted her, keeping after her
concerning the Union and stating, inter alia, that Richard
Sabounjian wanted some answers and, if she did.not get
Richard some answers , she was going to lose her job.
Perkins claims she -told Forde -she' could not help that;
that she needed her job too. When prodded by the Gen-
eral Counsel, Perkins also. recalled that Forde told her
during the conversation that she had better not catch her
talking to employees about the Union or speaking to any
union official; that she would be fired right on the spot.5
When Gail Forde appeared as a witness , she testified
she became the supervisor on the 11 p.m. to 7 a.m. shift
on October 3, 1983. She indicated she supervised that
shift from that time until approximately December 3,
1983, at which time she served as the supervisor on the 3
to 11 p.m. shift for this month. She then returned to the
11 P.M. to 7 a.m. shift, and, was the supervisor on that
shift until she left Respondent's employ to accept'a posi-
tion,at another nursing home on August 6, 1984.
During her testimony, Forde claims she socialized
with Perkins when she was her supervisor, and she enu-
merated several instances during which she claimed she
bent Respondent's rules to accommodate the employee.
In this vein, she testified she spent New Year's Eve with
Perkins, and purchased tickets from her for her club
dance, which she and her husband attended in February
or March 1984. She testified she went out of her way to
avoid disciplining Perkins who had a problem with-being
late. In support of that assertion, she testified that at
some point during the first 3 months' of 1984, Perkins
overslept and when she was unable to reach her by'tele-
phone, she sent another employee to her home to
awaken her and cause her to report for work so she
would not lose her job. She testified that on another oc-
casion , when Perkins reported for work late in a flow-
eredblack and red outfit, she sent'the employee home to
permit her to change into her uniform.-On the latter oc-
casion , she indicated she did not require Perkins to clock
out when she sent her home. -'
Forde categorically denied that she told Perkins in Oc-
tober 1983 that she, was put on the shift specifically to
get rid of her; that she had been told by Sabounjian or
any other supervisor to fire her, ' or -that there was a
5 While Perkins testified employee Celeste Brown may have heard part
of the conversation, neither the General Counsel nor Respondent called
Brown as a witness
STAR OF DAVID CONVALESCENT HOME 311
bonus for anyone who did; that she told Perkins it would
be a good idea for her to leave the facility and find, a job
elsewhere; or that her job was on the line unless she was
fired. Similarly, she denied she engaged in any of the
conduct which Perkins claims she engaged in on April 5,
1984.
Forde .impressed me as being an intelligent individual
who was seeking, while testifying, to tell the truth as she
recalled it. Perkins, on the other hand, appeared to be an
individual who was quite willing to tailor the facts to fit
the needs of her case. In particular, when reciting her
recollection of events which occurred during the period
April 6-10, discussed infra, her version of the events is
markedly at odds with the versions given by witnesses
whom I consider to be -impartial. Moreover, I view with
considerable suspicion her testimony discussed infra,
which was corroborated in part by her sister- in-law,
Agnes Turner, and was offered in an attempt to con-
vince me that a new organization campaign was com-
menced-conveniently-at the very time she was termi-
nated despite the fact that under Board rules another
election could not be held at Respondent's facility until
after June 14, 1984. In sum , I credit Forde rather than
Perkins, and find that Respondent did not commit the in-
dependent violations of Section 8(a)(1) alleged in para-
graph 8 of the complaint. Accordingly, I recommend
that those allegations be dismissed.
C. The Perkins Termination
Minnie Perkins' employment at Respondent terminated
on April 10, 1984. Respondent claims the employee vol-
untarily quit. The General Counsel claims she was termi-
nated because Respondent anticipated another unioniza-
tion campaign and it desired to rid itself of a staunch
union adherent. In the alternative, the General Counsel
contends that Perkins was terminated because she and
others concertedly protested when Respondent was
unable to adequately staff the 11 p.m. to 7 a.m. shift
during the months of March and April 1984. '
Although the 1983 election was held on June 14, 1983,
and Local- 1475 was not lawfully entitled to obtain an-
other ,NLRB election at the Star of David until a year
had passed, Perkins claims that in early March 1984, she
called the Union's chief organizer, Mark Splain, and ar-
ranged for an organizational meeting which was to be
held at the home of Agnes Turner on March 28 at 3:30
p.m. Perkins claims she discussed the meeting with em-
ployees Valerie Burns, Betty Galloway, and Diane
Dailey, but it was never held because Turner, her sister-
in-law , experienced an illness in the family and had to
cancel the meeting on March 27.6 According to Perkins,
Splain showed up for the meeting and was observed by
Uriah Higgins, a physical therapy aide at the facility
who had taken Turner home from- work. Perkins indicat-
ed Higgins was personally acquainted with Splain and
had indicated during the 1983 unionization campaign that
he disapproved of the Union. .
Perkins testified that, subsequent to March 28, she
scheduled a second union meeting which was to be held
at her home on April 6. In addition to discussing the
proposed meeting with Splain, she claims she invited em-
ployees Agnes Turner, Betty Galloway, and Valerie
Burns to attend. According to Perkins, she, Splain, and
Turner showed up for the meeting and Uriah Higgins
dropped Agnes Turner off at her house. Perkins testified
that during the meeting the main thing discussed was the
way things were going at the home. In'-particular, she
claims she told Splain that Gail Forde was constantly
nagging at her and harassing her and she wanted to go
downtown and make a complaint for harassment against
her.
When Agnes Turner was called as a witness, she cor-
roborated Perkins' claim that a union meeting was sched-
uled'to be held at her home in late March. She testified
the meeting was canceled 'because she received an emer-
gency telephone call and she had to go out of town'. Ac-
cording to Turner, Valerie Burns, Minnie Perkins, Nicky
Petit-Frere, and Betty Galloway, all nurses aides, were
also invited to attend the late March meeting. -Similarly,
Turner corroborated Perkins' claim that a second union
meeting was held on April 6 at Perkins' home. Accord-
ing to Turner, the same employees were asked to attend,
but she and Perkins were the only employees who ap-
peared to meet with union organizer Splain. Turner testi-
fied that during the meeting , which lasted 1-1/2 hours,
they discussed getting themselves organized, arranging a
meeting with employees, and obtaining and getting signa-
tures on cards. Turner testified that, during the meeting,
she did not complain about how the nurses treated her at
the facility. Asked whether Perkins voiced such com-
plaints she responded: "Not that I know of."
On April 6, 1984, Perkins and Clara Houston; both
nurses aides , reported for work on the 11 p.m. to 7 a.m.
shift at 11 p.m. They were assigned to ' work at station B
that night. While. they checked their patients to assure
that they were asleep, Marge Leonard, the charge nurse
covering stations A and, B that night, was downstairs at
station A checking medication.-.At some point after Per-
kins and Houston had checked their patients, Leonard
appeared at station B to check medications there and Jeff
Shea, a 3 to 11 p.m. shift orderly who had been asked to-
work over that night because the 11 p.m. to 7 a.m. shift
was shorthanded, arrived at station B.7 After Shea ar-
rived at station B, Houston and Perkins discussed the
fact that it appeared that they would be working short
that night. Perkins expressed her dissatisfaction. At, ap-
proximately 11:15 p.m., Gail Forde, the 11 p.m. to 7 a.m.
shift supervisory nurse , approached station B and..in-
formed Perkins, Houston, and Shea that they would be
working short but there was nothing she could do about
it. Houston stated she was tired and it was too much for
her to handle all the men. Perkins suggested that Leon-
ard could perform the duties of the nurses aides assigned
to station A that night and the aide from that station
could come to station B and assist . Forde indicated that
she intended to use orderly Shea as a float between sta-
' Shea testified he arrived at station B at or near 11 p in Perkins testi-
fied he did not appear until considerably after I I p in Shea was a disin-
9 Employees Burns, Galloway, and Dailey were not called as wit- terested witness who appeared to attempt to be precise . I credit his testi-
nesses mony where it conflicts with that given by Perkins -
312 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
tions B and D instead. After observing that such an ar-
rangement would simply. cause Shea to take two of her
patients and two of Houston's and leave them to eight
patients apiece, Perkins again indicated she felt Forde
should bring the nurses aide from station A to station B.
At that point, both Perkins and Forde were speaking
loudly. Forde informed Perkins the assignments were
going to be as she had indicated and told Perkins if she
did not like it she could go home. Perkins replied maybe
they should all go home; that she had a home to go to.
She then picked up her pocketbook and left. As Perkins
was leaving, Forde sought to stop her by by calling,
"Minnie come back." If she heard Forde,- Perkins ig-
nored her.8 -
At 6 a.m. the following day, April 7, Perkins tele-
phoned the facility and spoke with Forde. Perkins claims
that after Forde had sent her home the night before, she
asked. her supervisor if that meant she was fired and
should not report for work that night.
Perkins claims Forde told her she was not terminated
and should report for work that night. What happened
next is in dispute. Perkins claims she then told Forde she
needed more on that than her, and she asked for Janet
Fuller's telephone number. She 'claims Forde said she
could not give her Fuller's number, but would call
Fuller and have her call Perkins. Perkins claims that
Fuller called her from her home about 8 a.m., indicated
Forde had told her what happened on Friday night; told
her to go ahead on in and to not forget to work the 7
a.m. to 3 p.m. shift on Sunday; and said she was going to
talk to her and Forde. on Monday. Perkins claims she
then asked if that meant something was wrong, and that
Fuller said, "No, Minnie, I'm just going to talk to you.,,
Forde testified that when Perkins called at 6 a.m. on
Saturday, she opened the conversation by stating she had
heard that'she was fired. She claims she stated she had
not told her she was fired, and asked who had. She
claims Perkins then indicated Marge Leonard had said
she was fired. Forde claims she then put Perkins on hold
and went to the nursing office and resumed the conver-
sation by telling Perkins she really had to get in touch
with Janet Fuller to discuss it with her; that she would
call her right back. Forde testified she then called Fuller,
explained what happened, and Fuller told her to have
Minnie call Monday. to set up a meeting. Forde claims
she then called Perkins back and told her she was not
fired, but Janet wanted to set up a meeting with her for
Monday. She claims Perkins asked why she could not
handle it as it happened on her shift. Forde claims she
replied they had to sit -down and talk about what hap-
pened that night, and Perkins asked if she was going to
come to the meeting, indicating she wanted her'there at
the meeting. Forde claims the conversation ended with
8 Perkins testified that, when she voiced dissatisfaction with Forde's
assignments , Forde ordered her to go home by stating, "Minnie, go
home." Barbara Barrett, a nurses aide who was working at station D,
which is another wing of the building separated from station B by a 133-
foot corridor , testified that, although she did not hear all the conversa-
tion, she heard Forde tell Perkins , "Minnie, go home " Shea, Houston,
and Forde , all participants in the conversation as listeners or.speakers,
testified Forde prefaced her "go home" remark with "if you don't like it
and/or if you don't like the program " I credit Shea, Houston, and
Forde
her indicating she would be at the meeting.- After con-
cluding her conversation with Perkins, Forde claims she
complied with a request made by-Fuller during their dis-
cussion and prepared a note, which was left in Fuller's
office, documenting what had occurred on Friday night.
Forde's written statement was placed in the record as
Respondent's Exhibit 11. It states, in relevant part:
On Friday we were short 1 person. I put Mavis
on A. & Celeste on C 2+2 and 1 float. -Minnie Per-
kins was very upset about us being short: I told
Minnie Marge & myself would help c a assignment.
She said no bring Mavis upstairs and the Nurse will
work A. I told her no we would keep' her `the way I
said. She was very mad. So I told-her if she didn't
like the program to go home & she did she punched
out @ 11:32.
Valerie Burns wanted to work this night. Could
you please pay her from 11 p.m.
Fuller corroborated" Forde's testimony; and testified
she did not call Perkins on Saturday, April 7. I credit
Forde and Fuller.
As Perkins had been assigned to work her fegular shift
on. Saturday, April 7, and had agreed to stay, over and
work the 7 a.m. to 3 p.m. shift on Sunday, April 8, she in
fact reported at 11 p.m . 'on Saturday and continued to
work until 3 p.m. on Sunday. She claims Kilgallen, the
supervisor assigned to provide administrative coverage
that weekend,9 called the facility about 1 a.m. on Sunday
morning and reminded her to stay over and work the 7
a.m. to .3 p.m. shift on Sunday. Kilgallen agreed she
talked to Perkins on. Sunday, but .asserted that' she
worked from-8 a.m. to to 4 p.m. on Sunday and spoke to
Perkins on the job. She' testified Perkins approached her
on Sunday morning and asked if she had_ heard about the
trouble she had_ on Friday, and when she replied she had
heard some of it, Perkins told her she and Gail (Forde)
had gotten into an argument and she had lost her cool
and had walked out and she was wondering what was
going,to happen. 10
On Monday morning , April 9, Perkins called the facili-
ty and spoke with Fuller. She asked Fuller what time she
wanted to meet with her and Fuller told her she would
call her back. That afternoon, Sabounjian - telephoned
Perkins and told her not to report for work that night; to
report the next afternoon at 3 p.m. for a meeting. Sa-
bounjian's call prompted Perkins to call Sabounjian's su-
perior, a Mr. O'Hanian , at Respondent's corporate office
in Lexington. When Perkins expressed concern that Sa-
bounjian might be -planning to do something about the
Friday night incident, O'Hanian told her to go the meet-
ing and call him back and let him know what happened.
The record reveals that on the same day, Shea, at
The record reveals that Respondent 's supervisors do not - work on
weekends However, one individual is assigned to provide administrative
coverage and remains "on call" Saturday, and reports to the facility on
Sunday to meet with visitors and handle any problems that come up in
nursing
10 I do not credit Perkins ' claim that Kilgallen called the facility and
spoke with her at 1 a in on Sunday morning
STAR OF- DAVID CONVALESCENT HOME
Fuller's request, prepared a written account of what hap-
pened Friday. night and left it with' Fuller. 1 t
On Tuesday, April 10, Perkins, Forde and- Fuller met
in Sabounjian's office at approximately 3 p.m. Thereafter,
during a meeting which lasted approximately 1-1/2
hours, Sabounjian= sought to ascertain what had hap-
pened the preceding Friday night by reviewing written
statements given by Forde and Shea to Fuller, and by
asking Forde, Shea, and Houston 12 what had occurred.
With-minor differences, all three individuals informed
Sabounjian that after Forde and Perkins argued over
how the assignments would be handled on station B on
Friday night, Forde told Perkins that was the way the
assignments were-going to be and if Minnie did' not like
it, she could go home . In addition , all three individuals
indicated that, as Perkins was leaving, Forde told her to
come back. -
During her testimony, Perkins indicated she told- Sa-
bounjian during the meeting that after she and Forde
argued over assignments on Friday night, Forde ordered
her to leave the facility by telling her, "Minnie, go
home." When testifying in the instant proceeding she tes-
tified that Forde, Shea, and Houston also told Sabounjian
during the meeting that, at the conclusion of the discus-
sion concerning the manner in which assignments would
be handled, she was told, "Minnie, go home."12 .
At the conclusion of the April 10 meeting, Sabounjian
informed Perkins his conclusion was that she had volun-
tarily quit when she left the facility on Friday night. She,
then asked for her pay and he informed her she would
receive it on their regular payday.- She left the meeting
stating she would see him in court.
While Sabounjian acknowleged during his testimony
that he had considered Perkins to be a good employee
prior to April 10, he testified that during his tenure as
administrator all employees who walked off the ,lob- were
uniformly considered to be terminated. He testified that,
after he became the administrator at the facility, all em-
ployees had been given a pamphlet containing, inter alia,
the rules at the facility, and that under the heading "Vol-
untary Resignation," the rules provided, inter alia:14
If you walk off the job without notice, your termi-
nation papers will read "quit without notice" and
you will not be eligible for rehire. We will release
this fact to future employers on reference requests.
Leaving suddenly is not only a disservice to an em-
See R Exh 4 , which states the following
Minnie Perkins and Gail Ford were arguing . about staffing, be-
cause we were short
I did not think that they were serious because they always seem to
be joking around
Minnie told Gail that she did not want to work short. Gail told
Minnie that if anyone did not want to work like that they could go
home.
Minnie then grabbed her pocketbook and coat and went home
12 Houston 's version was obtained when Sabounjian telephoned her on
his speaker phone -
• Is Perkins ' claim that Forde, Shea, and Houston supported her version
of the Friday night discussion during the meeting in Sabounjtan 's office, a
claim which I totally reject, clearly reveals she sought to tailor the facts
in this case to suit her own ends.
14 See G C Exh 6.
313
ployer' but also disregard- for our residents and our
ability to care for them.
In support of this contention that -all employees who
had walked off the job had been disciplined, he identified
"`Notice of Record of Warning to Employee" forms for
former employees Jacquelene Bowman , W. McHugh,
Linda Stokes, and Dawn Lagueere, • which reflect that
they voluntarily terminated their employment by walk-
ing off the job.15 Sabounjian indicated his commitment
to the patients and to members of the staff dictated that
he consider employees who walked off the job to be vol-
untary quits.
During her testimony, Perkins claimed that her copy
of the pamphlet containing Respondent' s rules was in-
complete and did not contain the above-quoted language
concerning walking off the job. Similarly, employee Bar-
bara Barrett testified the pamphlet she received did not
contain the quoted provision.16 With respect to Perkins,
Kilgallen testified that shortly after employee Jackie
Bowman was terminated on February 28, 1983, she told
Perkins Bowman had been fired for walking off the job.
In support of her claim that Perkins left the facility on
April 6 because Forde ordered her to go home, the Gen-
eral Counsel -placed in the record as General Counsel's
Exhibit 9 a "Decision on Eligibility for Benefits" issued
by the Division of Employment Security' of the Com-
monwealth of Massachusetts on July 19, 1984, which
contained certain factual findings and indicated Perkins
was eligible to receive benefits. Respondent countered by
placing in evidence as Respondent's Exhibit 2 a "Deci-
sion of Board Review" of the same agency dated Octo-
ber 5, 1984, in which the `agency reversed the earlier
ruling. '
Conclusions
The General Counsel's burden of proof is set forth in
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
where the Board stated:
[W]e shall henceforth employ the following causa-
tion test in all cases alleging violation of Section
8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation. First, we shall require that
the General Counsel make a prima facie showing
sufficient to support the inference that protected
conduct was a "motivating factor" in the employ-
er's decision. Once this _ is established, the burden
will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct.
For the reasons set forth below, I find that the General
Counsel has failed to prove, prima facie, that Respondent
violated Section 8(a)(1) or (3) of the Act by terminating
employee Minnie Perkins.
15 See R Exhs 5, 6, 8, 9, and 10
16 The pages of the pamphlets are stapled together and the voluntary
resignation section appears on the last page , which could easily become
separated from the remainder of the document
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To establish the alleged 8(a)(3) violation the General
Counsel needed to prove that Perkins engaged in union
activity that Respondent was aware of her union activi
ties or sentiments and that her union activities or senti
ments motivated it to discharge her While the credited
facts elicited establish that Perkins engaged in extensive
union activity in 1983 and that Respondent was aware of
her union advocacy the General Counsel was unable to
prove to my satisfaction that Respondent discharged the
employee because she was a union adherent The facts
which I credit cause me to conclude that no Respondent
official made any comment about Perkins union advoca
cy from the time Kilgallen predicted she would be dis
charged for supporting the Union during its 1983 cam
paign through the date of her termination on April 10
1984-a period of approximately 8 months Moreover al
though Perkins and Turner testified there was a resur
gence of union activity near the time of Perkins termina
tion the record fails to reveal that any Respondent offi
cial was aware of any union activities by any of its em
ployees including Perkins during 1984 Finally al
though the General Counsel urges me to find that Per
kins was ordered to go home on April 6 and was subse
quently terminated because she simply obeyed Forde s
order that she go home, the evidence which I credit re
veals that Perkins was guilty of insubordination on April
6 when she sought to tell Forde how assignments should
be handled and she voluntarily absented herself from her
job on that date because she became angry with Forde
when the latter failed to handle assignments the way
Perkins desired In sum I conclude Sabounjian justifiably
decided upon hearing the credible information supplied
by Supervisor Forde and employees Shea and Houston
that Perkins walked off the job during her shift on April
6 without adequate provocation or excuse I find that
Perkins was discharged for cause rather than because of
her union activities or sentiments and I recommend that
the 8(a)(3) allegation in the complaint be dismissed
While the General Counsel contends in the alterna
time that Perkins was discharged on April 10 because
she engaged in protected concerted activity on April 6
my conclusion that the employee was terminated for
walking off the job without adequate provocation or
excuse on April 6 is dispositive of the 8(a)(1) allegation
as well as the 8(a)(3) allegation Patently Perkins was
not engaged in concerted activity when she became
angry at Forde and walked out She alone chose to
walk out to protest Forde s failure to arrange assign
ments the way she wanted them arranged and her action
was not concerted in any respect Accordingly I recom
mend that the allegation that she was discharged in vio
lation of Section 8(a)(1) of the Act be dismissed
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 United Labor Unions Local 1475 was a labor orga
nization within the meaning of Section 2(5) of the Act
until June 8 1984 and Service Employees International
Union Local 1475 AFL-CIO CLC is now and has
been since about June 8 1984 a labor organization
within the meaning of Section 2(5) of the Act
3 Respondent has not committed any of the violations
alleged in the complaint
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edit
ORDER
The complaint is dismissed in its entirety
17 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules ard Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
Poses