Summer Hill Nursing Home

National Labor Relations Board - Board Decisions

Jan 19, 1976

222 N.L.R.B. 433 (N.L.R.B. 1976)

SUMMER HILL NURSING HOME 433
Neil Kerman , Melvin Feigenbaum , Jacob Kresch and
David Kerman, a Co-Partnership , d/b/a Summer
Hill Nursing Home' and Charlene Goerke. Case
22-CA-6252
Janauary 19, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On October 3, 1975, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding . Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings 2 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Neil Kerman, Melvin
Feigenbaum, Jacob Kresch and David Kerman, a
Co-Partnership, d/b/a Summer Hill Nursing Home,
Old Bridge, New Jersey, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
The questions presented are whether Respondents, in vio-
lation of Section 8(a)(1) of the National Labor Relations
Act, as amended, (the Act) interrogated and threatened
their employees concerning their membership in, activities
on behalf of, and sympathy for District 1199, National
Union of Hospital and Health Care Employees, RWDSU,
AFL-CIO (the Union or District 1199); and, in violation
of Section 8(a)(3) and (1) of the Act, reduced the hours and
changed the working status of employee Charlene Goerke
(Miss Goerke), and thereafter discharged her, because she
joined or assisted the Union or engaged in other concerted
activities for the purpose of collective bargaining or mutual
aid and protection.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the oral argu-
ments of both parties at the conclusion of the hearing, the
brief filed by Respondents, and the "additional argument"
submitted in a letter dated July 25, 1975, from counsel for
the General Counsel (the General Counsel) with a copy to
Respondents' counsel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondents are a co-partnership doing business under
the trade name of Summer Hill Nursing Home. Respon-
dents maintain their principal office and place of business
in Old Bridge, New Jersey, where they provide nursing
home and related services. During the respective years pre-
ceding the issuance of the complaint and amended com-
plaint, constituting representative periods, Respondents
caused to be purchased, transferred to, and delivered to
their Old Bridge facility medical supplies and equipment,
drugs, and other goods and materials valued in excess of
$50,000 in interstate commerce directly from States other
than New Jersey. I find that, as Respondents concede, Re-
spondents are engaged in commerce within the meaning of
the Act, and that assertion of jurisdiction herein will effec-
tuate the policies of the Act.
District 1199 is a labor organization within the meaning
of the Act.
The name of Respondent Neil Kerman appears as amended at the hear-
m§
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544'(1950), enfd. 188 F 2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard at Newark, New Jersey, on June 12,
13, 16, 17, and 18, 1975, pursuant to a charge filed on
February 24, 1975, and a complaint issued on April 11,
1975, and amended on May 22, 1975, and May 28, 1975.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
About spring 1974, the Teamsters began an organizing
campaign at Summer Hill Nursing Home (the Home). In
September 1974, the Board certified that the Teamsters
had lost a representation election conducted in August
1974.
On several occasions within a 3 -week period during the
Teamsters' campaign, including 3 occasions on a single
day, Respondent Neil Kerman,' Respondent Melvin Feig-
enbaum, and/or Supervisor George McCraw 2 instructed
'Hereafter referred to as Kerman Respondent David Kerman will be
referred to by his full name.
Z McCraw's supervisory status is alleged in paragraph 7a of the amended
Continued
222 NLRB No. 71
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then switchboard operator Jean Green to call the police to
remove union men from the property.3 At, an employee
meeting in June 1974, when management discussed wage
increases and a medical and dental insurance plan, Feigen-
baum or (probably) Kerman told the employees that they
would not get better wages and benefits if a union were
seeking them.4
In the course of the Teamsters campaign, employee
Green provided Kerman with all but two of the pieces of
literature which her sister (employed by Respondents until
about late May 1974) received from the Teamsters. Mrs.
Green offered him one piece of the remaining literature as
well, but he said that he had already obtained it from em-
ployee Phyllis Goerke.5.On one occasion during this pen-
od, when then switchboard operator Green advised Ker-
man that she had put on "hold" a telephone call to
employee Hartley from a Teamsters representative, Ker-
man asked Mrs. Green to arrange for him to listen in on
the conversation. When she replied that she did not know
how to arrange this, he asked her to listen in on the call.
She did so, and then reported to Kerman that there would
be a Teamsters meeting that night at a specified restaurant
in the area. He replied, ". . . okay." 6
Also during the Teamsters campaign, Feigenbaum asked
Mrs. Goerke, a registered nurse who had been doing some
administrative and related work at the Home and with
whom he and Kerman were then personal friends,? which
staff members favored the Union and which did not. Mrs.
complaint, and admitted in paragraph 7 of Respondents' "Answer to
amended amended complaint "
3 This finding is based on the testimony of Mrs. Green, not actively em-
ployed by Respondents at the time of the hearing, whom the General Coun-
sel called as a rebuttal witness - She.impressed me as an honest witness, and
her testimony about these calls was persuasively specific. McCraw was not
asked about these incidents. On cross-examination, Respondents Feigen-
baum and Kerman both denied that these incidents occurred. As discussed
infra, I regard these Respondents as unreliable witnesses in other respects
On the basis of the witnesses' demeanor, I credit Mrs Green
4 Employees Green, Leola Hartley, and Emily Holbrook, all of whom
impressed me as honest witnesses, all testified as rebuttal witnesses that at
least this much was said about a union Because the complaint contains no
allegations as to this incident, I regard my finding in the text as sufficient
for purposes of this case Kerman's version of the meeting did not refer to
the Union, he was not specifically asked whether it was mentioned For
demeanor reasons, I discredit Feigenbaum's denial that a union was men-
tioned
5 My findings as to Kerman's receipt of Teamsters literature are based on
Mrs. Green's testimony. For the reasons set forth supra, fn. 4, I do not credit
Kerman's or Feigenbaum's denials.
6 My findings about this incident are based on Mrs Green's testimony
Kerman was not asked about this incident
7 Mrs. Goerke's sister had been Respondents' director of nursing when
the Home opened its doors in September 1972 While her sister was serving
in this capacity, Mrs Goerke helped her to find nurses and typed up person-
nel policies and procedure manuals for her Between June 1974 and the end
of that year, because of the health problems of then director of nursing,
Donald Powers, Mrs Goerke performed some administrative work which
he normally would have done In addition, when the nursing home first
opened, Mrs. Goerge performed overtime work without compensation be-
cause of "a feeling of loyalty I had It was brand new. I was proud of the
place It was like home, [a] family thing " -
Also because of Powers' health problems, Feigenbaum and Kerman had
frequent occasions to visit Powers, who was living with the Goerkes a short
distance from the Home. Such visits led to conversations with the Goerke
family. On several occasions, at Mrs Goerke's request, Kerman arranged
for her to purchase at wholesale prices jewelry for her daughter, employee
Charlene Goerke On another occasions, Mrs Goerke lent Ferman her car
Goerke, who at that time opposed the Union, supplied this
information to Kerman and Feigenbaum and to then di-
rector of nursing Powers. Other employees also reported to
these members of management about fellow employees'
Teamsters activities. At the time of the June 1975 hearing,
most of the employees reported about, as well as those who
reported them, were still employed by Respondents. On
one occasion, Kerman asked Mrs. Goerke to go to a near-
by Burger King restaurant to see which employees were
talking during their lunch break to a union representative
identifiable by a New York license, plate number which
Kerman gave her. She did so, and reported her observa-
tions to Kerman. Thereafter, Kerman and Powers asked
Mrs. Green, who was then a nurses aide, to go to the Burg-
er Chef and to report back to them if she was approached
there by a union man.'
B. Respondents' Alleged 8(a)(1) Violations During District
1199s Campaign
Although the Teamsters lost the August 1974 election,
some of Respondents' employees thereafter engaged in dis-
cussions about union organization. In December 1974,
Mrs. Goerke reported this activity to Respondent Feigen-
baum, who said, ". . . don't worry, a union can't touch us
for a year." 9 In early January 1975,10 employee Charlene
Goerke (Mrs. Goerke's daughter) telephoned District 1199
and asked it to send a representative to organize the Home.
During the next few weeks, District 1199 held several meet-
ings for Respondents' employees, some of whom also dis-
cussed District 1199 among themselves and circulated and
signed authorization cards.
In early January 1975, Chef Rasheed Barata, who Ker-
man testified is a supervisor, told Mrs. Goerke that "the
bosses want[ed] to fire" a kitchen employee, identified in
the record merely as "Lora," and advised Mrs. Goerke to
stay away from her because she had come in one evening
asking what time a union meeting was to be held. About
mid-January, Kerman called Mrs. Goerke to his office and
asked what she had been talking to "Lora" about. Mrs.
Goerke replied that "Lora" had been telling about a book
she was writing and about her journal. Kerman asked what
Mrs. Goerke had heard of union activity. Although Mrs.
Goerke had heard her daughter Charlene and her friends
talking 'about the Union on the telephone, Mrs. Goerke
replied that she knew nothing about it.ll
During break time shortly before January 24, the date of
the first union meeting, employees Charlene Goerke,
Charles Caulfield, Karen Keiser, and Frank Mulvey gath-
ered at a table in the staff dining room, which is about 10
S
My findings in this paragraph are based on Mrs Green's testimony,
which is uncontradicted, and on the testimony of Mrs. Goerke Feigenbaum
was not asked about Mrs Goerke's activity except a request that Mrs
Goerke observe union activity at a hamburger place; he denied making such
a request, but she did not attribute such a request to him. For demeanor
reasons, and in view of Kerman's unreliability in other respects (see infra),
I discredit his denials of the first Burger King incident and of Mrs Goerke's
rqorts to him.
This finding is based on Mrs. Goerke's undemed testimony.
10 All dates hereafter are 1975 unless otherwise stated
11 My findings in this paragraph are based on Mrs Goerke's undenied
testimony
SUMMER HILL NURSING HOME 435
by 12 feet and is across a hail and about 20 feet from the
office used by Kerman and Feigenbaum. The employees
discussed arrangements for transportation of people who
were going to the forthcoming union meeting. As the other
employees were getting up from the table, Caulfield was
called to the doorway by Supervisor McCraw, who had
been standing at a vending machine immediately outside
the dining room door. McCraw told Caulfield that he had
a, very loud voice, that the A-wing kitchenette (where the
employees sometimes took-their breaks) was right next to
Kerman's office, that the walls were very thin and
Caulfield's voice could travel through these walls, that
"they" knew everything the employees were talking about,
and that if Caulfield did not "watch" himself he was going
to get himself and other people were going to get them-
selves into "trouble with this union talk." Caulfield replied
that anything he said privately he was not afraid to say
openly. McCraw thereupon laughed, and Caulfield left the
room.12
About this same time , Supervisor McCraw met employee
Mulvey on the stairs and, according to Mulvey's undenied
and credible testimony, "just casually asked me if I had
heard anything about the Union." Mulvey replied that he
had not. The record fails to show whether this was true.13
A few days after the January 24 union meeting, employ-
ee Pat O'Brien told Supervisor McCraw, in the presence of
employee Florence Fredericks, that Mrs. Fredericks had
asked O'Brien, "in case that we were able to get a union
into the nursing home at some future date, would he be
willing to go along with it," and that he was disturbed
about this.14 Mrs. Fredericks admitted that she had made
such a statement to O'Brien, whereupon McCraw stated
that "he didn't want to hear of anything about a union, or
know of any papers or flyers or cards being passed around
the nursing home -as it would mean immediately dismissal
for anybody that was found with it." Mrs. Fredericks told
McCraw that she knew nothing about O'Brien's further
complaint to him that somebody -wanted to take O'Brien's
job away, considered him an old man, and "mocked him
out" because he came to work, on a bicycle. During a
coffeebreak later that day, Mrs. Fredericks embraced a fel-
low employee and told her that O'Brien had "squealed" to
McCraw about Mrs. Fredericks' asking O'Brien about a
union . Upon seeing this , McCraw nodded, sipped at his
12 My findings in this paragraph are based on the mutually corroborative
testimony of the four employees present : McCraw testified that he told
Caulfield that he could be heard in the office used by Kerman and Feigen-
baum, and should lower his voice somewhat . However, McCraw admitted
that Caulfield replied (as the employees testified), "Whatever I have got to
say I am happy to say this public or in front of anyone," a remark which is
fully responsive to McCraw's remarks as testified to by the employees but,
as McCraw himself testified, would be a "strange response" to his com-
ments as testified to by him. Moreover, McCraw partly explained his al-
leged request that Caulfield lower his voice by expressing a somewhat irrele-
vant concern that employees were overstaying their break Because of such
incongruities in McCraw's testimony and after considering the witnesses'
demeanor, I credit the employees ' version of this incident , and believe Mc-
Craw's only to the extent consistent with theirs
13 Mulvey was not sure whether this conversation, which McCraw was
not asked about, occurred before or after McCraw's conversation with
Caulfield in the staff dining room
14 My finding in this sentence is based on the mutually corroborative
testimony of McCraw (whom I credit to this extent) and Mrs Fredericks
coffee, and said, "... he knew who the instigators
were." 15
Between the January 24 and the January 31 Union meet-
ings, supervisor McCraw met employee Barry Fredericks
(employee Florence Fredericks' son) in the hallway. 'Mc-
Craw stopped him and asked whether he knew- anything
about the union meeting. Barry Fredericks replied that he
did not.16 McCraw then said that "he dust got done talking
to [Barry Fredericks '] mom, and that if he finds out who's
starting it up, . . . there's going to be a dismissal." Barry
Fredericks then said he knew nothing about a Union.17
Thereafter, the employees discussed among themselves
McCraw's dismissal threat for union activity and the fact
that he had spoken to the Frederickses about union activi-
ty.
C. The Alleged Discrimination Against Employee Charlene
Goerke
1. Background
Charlene Goerke was hired by Respondents in October
1972, about a month after the Home opened its doors, and
was continuously employed by Respondents until her Feb-
ruary 1975 discharge. She worked as a kitchen aide until
Janauary 1974, when, at her request, she was assigned to
work as a nurses aide, the job she held for the rest of her
employment.
In June 1974, Miss Goerke received an "Employee Ser-
vice Evaluation" which rated her as above average in each
of the 22 applicable categories 18 and contained a
"Supervisor's Comment," "Good aide. However, at times
is gruff and profane. Her attitude toward some [patients]
may be due to misunderstanding of condition . Attitude
seems to have changed in last month ." I infer from the
15 My findings in the last four sentences are based almost entirely on Mrs.
Fredericks ' credited testimony Her testimony about the coffee break inci-
dent is undenied . After credibly testifying that O'Brien had complained
about being "disturbed" by Mrs. Fredericks ' efforts to discuss the Union,
McCraw initially testified that she never said anything to him about the
Union McCraw then testified that O'Brien had alleged that Mrs. Fredericks
had threatened him with being run off the road if he did not loin the Union,
that Mrs Fredericks had denied saying this , and that McCraw did not ask
her what happened but merely said, " we cannot have this type of
discord in the home . We can't have one employee threatening the other .
We have to work together, we have got ajob to do . What you do away from
the Home is your own business " McCraw testified that he did not report
this incident to his superiors , and that Mrs Fredericks had been a good
worker . Although still in Respondents ' employ, O'Brien was not called as a
witness. In view of the witnesses ' demeanor and the improbabilities in Mc-
Craw's testimony , I credit Mrs Fredericks
16 The record contains no direct evidence about whether this was true.
Because Barry Fredericks' mother signed a union card , attended a union
meeting , had been campaigning for the Union , and lived in the same apart-
ment complex , if not the same apartment , as her sons, I infer that he did in
fact know about the meeting.
17 My findings in this paragraph are based on the testimony of Barry
Fredericks, whom I regard as a wholly honest witness McCraw, whom I
regard as unreliable (supra, fns . 13 and 16), admitted having a conversation
with Barry Fredericks about his mother, but testified that this was about a
personal problem related to Barry Fredericks rather than a union problem
or one related to his mother McCraw denied having told Barry Fredericks
that "he would be dismissed ," a statement which he never attributed to
McCraw.
18 Employees were rated t through 4 , 4 being the highest rating. Miss
Goerke was rated 3 in 21 categories and 4 in "Appearance."
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident on, which this comment was based that it meant
her attitude had changed for the better.19 Miss Goerke add-
ed to the form the comment, "I agree." Aside from this
report (which was made by then supervisor of nursing,
Powers, a family friend, supra fn. 8), it is undenied that
during the entire period of her employment , she was never
criticized for her work or its quality and never received any
warnings. In late fall 1974, she was sent to assist Kerman's
aunt (a patient at the Home) at a hospital. After visiting his
aunt at the hospital while Miss Goerke was looking after
her, he told Mrs. Goerke that her daughter "had made a
fine job, she made a fine appearance." Effective January
13, 1975, after Powers had left and 6 weeks before Miss
Goerke's discharge, her hourly rate was increased from
about $2.32 an hour to about $2.49 an hour. There is no
evidence that any other employees received wage increases
at this time.
2. The alleged discriminatory cut in Charlene Goerke's
hours
During the last week or two of the Teamsters campaign
which terminated with the August 1974 election, Miss
Goerke urged a number of her fellow employees to vote
"Yes." On the last day of the campaign, she prominently
wore on her uniform at the Home a 3-inch Teamsters but-
ton in "Da-Glo" colors: This button was admittedly ob-
served by Kerman, and it is undenied that Feigenbaum
saw it as well . In late August or early September 1974,
Kerman asked Miss Goerke whether she had voted for the
Teamsters, and she replied that she had 20 About late De-
cember 1974, Mrs. Goerke commented to Kerman that
she, her daughter, and her son Lawrence (also in Respon-
dents' employ) were "Summer Hill's most loyal employ-
ees." Kerman replied, "Yes, Charlene is really loyal. She
stabs us in the back." 21 -
As previously noted, it was Charlene Goerke who tele-
phoned District 1199 in early January 1975 to send down
an organizer. Miss Goerke told all of her fellow employees
about the first meeting on January 24; attended that meet-
ing and a subsequent meeting on January 31; asked the
organizer the questions that all the employees had; and got
cards and literature to hand out to people. She later distrib-
uted cards to between 10 and 20 of her fellow employees in
the Home during breaks.
a. Background
Between her October 1972 hire and June 1974, by which
latter date Charlene Goerke was a nurses aide, she attend-
ed high school and worked part time. When she worked as
a kitchen aide, she had no difficulty in obtaining from Su-
19 The comment on the form was based on an incident where the floor
was understaffed and, after a "very nice" but "very picky" patient rejected
a series of lunch trays brought to her room by Miss Goerke, she said in an
admittedly "harsh" manner, "I'm not going back to that kitchen again, I'm
sorry . . . . You'll have to eat this." Miss Goerke later apologized to the
patient, and testified, "... now we're the best of friends again."
20 This finding is based on the testimony of Charlene and Phyllis Goerke
On the basis of the , witnesses' demeanor, I do not credit Kerman 's denial
21 This finding is based on Mrs Goerke's testimony. Kerman did not
deny then making this remark , although he did deny the use of like language
when Miss Goerke was discharged in February 1975.
pervisor McCraw a work schedule which permitted her to
attend school and engage in after-school activities. When
she became a nurses' aide in January 1974, she worked
weekends until her June 1974 graduation. At this time, she
requested and received full-time employment as a nurses
aide.
In the fall of 1974, Miss Goerke registered for day
classes at college. The day after her registration, she told
then Director of Nursing Powers what days she would be
going to school, and he let her work on her days off from
school. Between September 15, 1974, and January 16, 1975,
Miss Goerke worked on the 7 a.m. to 3 p.m. shift at least 3
days each week, and occasionally 4. More specifically, she
regularly worked this shift on Sundays, Mondays, and ro-
tating Thursdays and Saturdays.
b. Miss Goerke's request for more hours during her semester
break
Miss Goerke was on semester break between January 15
and 29. On January 21 (infra, fn. 24), she asked Theresa
Howley, who was the secretary to the nursing director, for
more hours during the semester break. After checking with
Feigenbaum, Mrs. Howley said that she could work be-
tween 7 p.m. and 9 p.m. Miss Goerke said that she pre-
ferred to work from 7 a.m. to 3 p.m., her regular hours on
the days that she worked, but that she would "try" the 7
p.m. to 9 p.m. schedule. Mrs. Howley said that she did not
know if Miss Goerke would be needed from 7 a.m. to 3
p.m. any more "because she just didn't have enough room,
they had enough full timers." 22 Miss Goerke worked from
7 p.m. to 9 p.m. on January 22 and 23 in addition to work-
ing on other days the three 7-to-3 shifts called for by her
existing schedule. 23
Later that week, Miss Goerke asked Barbara Friedman,
the then acting director of nursing, for more hours. Mrs.
Friedman said that she did not know, she would have to
see, she did not need part timers on the 7 a.m. to 3 p.m.
shift, she had enough full timers . Miss Goerke said that 7
p.m. to 9 p.m. was very inconvenient, and could Mrs.
Friedman possibly make it 3 to 9 or 3 to 11 or something
like that. Mrs. Friedman thereupon scheduled Miss Goerke
to work, and she did work, between 3 p.m. and 9 p.m. from
Monday, January 27, through Friday, January 31, inclusive
(a total of 30 hours) rather than the two 7 a.m.-3 p.m.
shifts (totaling 16 hours) on Monday, January 27, and
Thursday, January 30, called for by the schedule previous-
ly drawn up.24 Mrs. Goerke repeatedly protested her
daughter's evening hours to Mrs. Howley, who referred her
to Kerman, who said, "I'll see."
22 This finding is based on Miss Goerke's testimony On the basis of the
witnesses' demeanor , I do not credit Mrs. Howley 's denial
23 Miss Goerke testified that her conversation with Mrs Howley occurred
about January 20. My finding that it occurred on January 21 is based on
Miss Goerke's testimony, to some extent corroborated by Mrs. Howley, that
the conversation took place the same week Miss Goerke worked 2 subse-
quent days between 7 p.m. and 9 p .m. (which dates are fixed by Respon-
dents' records as January 22 and 23 ) and on Miss Goerke's further testimo-
ny that the conversation took place on a day when she was not regularly
scheduled to work, the first such day that week was January 21. 1 believe
Mrs Howley was mistaken in testifying that the conversation occurred in
early January.
2 These hourly totals include 45-minute unpaid lunch periods
SUMMER HILL NURSING HOME 437
c. Miss Goerke's requests that her February schedule be
withheld and changed
In mid-January, in accordance with prior practice, a
work schedule form for February 2 to March 1 was posted
on the bulletin board, the only entries being the employees'
names. Miss Goerke's name was listed. Prior practice
called for each employee to enter his own suggested work-
ing hours on the form, which was then returned to Mrs.
Howley, who would make any revisions or additions to
bring the schedule up to good nursing coverage. The Feb-
ruary 2-March 1 schedule was returned to Mrs. Howley on
January 22, containing hourly schedules for most of the
employees but with no hourly schedule for Miss Goerke.
Between January 22 and 24,25 Miss Goerke asked both
Mrs. Howley and Mrs. Friedman to defer preparation of
Miss Goerke's February 2-March 1 schedule until January
31, because she was going down on January 31 to register
for day classes at college and did not yet know when she
would be going to school and when she would be available
for work. Mrs. Howley and Mrs. Friedman both responded
that they would wait and she should come to them when
she had her school schedule.26 Respondents had previously
adjusted the work schedules of Miss Goerke and other em-
ployees to their school schedules, sometimes on short no-
tice, without suggesting to the employees that such adjust-
ments were awkward to make.27
The schedule for February 2 to March 1, inclusive, was
posted about January 29. It called for Miss Goerke to work
from 7 a.m. to 3 p.m. every Sunday and every other Satur-
day, but gave her no weekday work at all. This schedule for
Miss Goerke had been drawn up at the instance of Re-
spondent Feigenbaum. Miss Goerke did not see the sched-
ule until January 30, at an hour when Mrs. Howley had
already left for the day.28 On the following day, Miss
Goerke went down to register at school but was unable to
get any classes (see infra, fn. 31). On the way back from
school, she and employee Lawrence Goerke (her brother)
25 My finding as to the date is based on Mrs Howley 's testimony, which
I credit to this extent.
26 My findings in the last two sentences are based on Miss Goerke's tes-
timony. Although still in Respondents' employ, Mrs. Friedman was not
called as a witness Because Miss Goerke 's 2 years' experience at the Home
must have given her some awareness of the Home 's scheduling problems,
and in view of the witnesses' demeanor, I do not credit Mrs Howley's
testimony that Miss Goerke asked her to defer issuance of the work sched-
ule for the entire staff and that Mrs Howley neither refused (the natural
response to any such request) nor agreed . Indeed, at certain points in her
testimony Mrs. Howley virtually conceded the limited nature of Miss
Goerke's request.
27 This finding is based on the undenied and credible testimony of Miss
Goerke, orderly Caulfield, and porter Mulvey. In addition, Mrs Howley
testified that during a period which included February 1975, part-time nurs-
es aide, Gecek, was in school , available from 4 30 to I1 00, and came in
when called.
28 This finding is based on Miss Goerke's credited testimony Miss
Goerke was working from 3 p.m to 9 p in. that day, and Mrs Howley
customarily leaves between 2 p m.and 5 p in , most often about 4 Mrs.
Howley testified that on January 31 (infra, In 30), Miss Goerke came to her,
waved her hand, and said in a direct, demanding, and hostile manner, "I
told you not to make up that schedule," whereupon Mrs Howley referred
her to Kerman Because of Mrs Howley's unreliability in other respects and
the witnesses ' demeanor, I do not believe Mrs. Howley's testimony in this
respect.
went to the Home to discuss their work schedules with
management.
Upon being advised that the Goerke siblings wanted to
speak to Kerman or Mrs. Howley, Kerman stated that he
would meet them in the office of the director of nursing,
and called Feigenbaum to the meeting as well. Lawrence
Goerke, an orderly who had been working the 1 I a.m. to 7
p.m. shift, said that he wanted to continue to work that
shift, rather than the 3 p.m. to 11 p.m. shift called for by
the posted February 2-March 1 schedule. Kerman refused.
Miss Goerke asked that she be given weekday work on the
7 a.m to 3 p.m. shift, preferably 5 shifts a week but at least
as often as she had worked previously-that is, Mondays
and alternate Thursdays, as well as the weekend shifts she
was already scheduled for z9 Kerman then called in Mrs.
Howley and told her to bring the schedule. He asked
whether there was any time off on the nursing schedule,
and she said there was not. Miss Goerke said that she was
supposed to register in school and to take 12 credits and
she was not able to get them, her father was going to cut
off her support, and she needed employment. She said,
. . please ... I thought that you could possibly work
me into the schedule." Kerman said that there were open-
ings on three Thursdays from 3 p.m. to II p.m. Miss
Goerke said that she could not take them because she was
planning to take Thursday night courses later in the semes-
ter;30 that Thursday nights were inconvenient; and that she
thought it unfair that she should be asked to work them,
because she "had been there longer than anybody" and the
other part-timers on her 7-3 shift had not had their hours
cut, although their days might have been switched .31 Miss
29 This finding is based on Miss Goerke 's testimony In view of the evi-
dence that she badly needed work (much of such evidence proceeding from
Respondents ' witnesses), the testimony by all witnesses that later during the
same interview she was offered work on Thursday evenings, and the wit-
nesses' demeanor, I do not believe the testimony of Kerman or Feigenbaum,
to some extent corroborated by Mrs . Howley; that Miss Goerke said she
wanted full-time 7-to-3 employment and would.accept nothing less. For like
reasons, I discredit Kerman 's and Feigenbaum 's testimony that the Goerke
siblings did not come in to seek changes in their February 2-March I work
schedules until the first week in February , after such schedules became
effective , and Mrs . Howley's testimony that they did not come in until
towards the middle of February Rather, I credit Miss Goerke's testimony
that she and her brother came in on January 31 , the day after she saw her
posted schedule.
70 She had been unable to obtain day classes at the January 31 registra-
tion because part-time students like her have the last selection and when her
turn came, all the classes were filled She hoped to and in fact did later
register for some Thursday evening " mini-courses," which start after the
regular semester begins but thereafter meet for more hours than the courses
with an earlier starting date
My finding about her reference to her school plans is based on the proba-
bilities of the situation, Miss Goerke's testimony, and employee Caulfield's
testimony , admitted without objection , that Miss Goerke had learned from
the posted college schedule that the course she needed would be on the
night she was offered work While Miss Goerke did not in terms testify that
she described this square conflict, I think it likely that she made this prob-
lem clear . On the basis of the witnesses' demeanor and the probabilities of
the situation , I do not credit Kerman's denial, corroborated by Mrs. How-
ley, that Miss Goerke explained that she planned to take a night course later
that semester. While this class did not start until after the close of the period
covered by the February 2-Marsh I schedule, I conclude that Miss Goerke,
whose prior schedule had been substantially the same between September
1974 and January 1975, anticipated that her new hours reflected in the
February schedule would likewise continue over a period of months.
31 This finding is based on Miss Goerke 's testimony , the seniority refer-
Continued
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goerke further said that the Goerkes had "done [Respon-
dents] enough favors." Kerman admitted the Goerkes'
prior favors 32 and the treatment accorded junior part-tim-
ers,33 but said that he could not just shift the schedule
around for the Goerke siblings, and that too many mem-
bers of the Goerke family were working there. The Goerke
siblings said that "other people who have members of the
family are all working together." 34 Kerman "just passed
over that." Kerman, proposed that the Goerke siblings go
to work at one of the other nursing homes in the area,35 but
Miss Goerke replied that she did not want to work any-
where else.36 Miss Goerke began to cry, and the men pre-
sent tried to soothe her. Kerman said that Miss Goerke
would be given "on call" status.
My findings in the foregoing paragraph are based on a
composite of Miss Goerke's testimony and credited por-
tions of the testimony of Feigenbaum, Kerman, and Mrs.
Howley. I believe that Miss Goerke gave a truthful account
of the conversation, but I also believe that certain addition-
al remarks were made to which her testimony does not
refer. Miss Goerke's testimony that her brother had there-
tofore been working from 11 a.m. to 7 p.m., and wanted to
continue those hours rather than the 3 p.m. to 11 p.m.
hours called for by the recently posted schedule, is corrob-
orated by Respondents' September 1974-March 1975 work
schedules for the 7 a.m. to 3 p.m. shift, which schedules fail
to list Lawrence Goerke, as well as Mrs. Goerke's uncon-
tradicted and credited testimony about Kerman's January
announcement of the change and Lawrence Goerke's even-
tual transfer to the 7-to-3 shift at the insistance of Director
of Nursing Sheppard. Accordingly, I do not credit the testi-
mony by Kerman and to some extent Feigenbaum that
before meeting with Miss Goerke, they met with Lawrence
Goerke to discuss a request from him for a change to the 7
a.m.-3 p.m. shift, that he was then promised the first open-
ing on that shift, and that he was present during
management's subsequent meetings with his sister because
Kerman called him in. For similar reasons, I do not credit
ence being corroborated by Mrs. Howley On the basis of the probabilities
of the situation and the witnesses' demeanor, I do not believe Feigenbaum's
or Kerman's testimony that her seniority was not mentioned.
32 Miss Goerke had never refused any requests by Respondent to perform
any kind of work, and at Respondents' request had sometimes worked 7
consecutive days. See also , supra, fn. 8
33
Nurses aide Olin was scheduled to work three 4-day weeks and one
2-day week in January, and three 4-day weeks and one 3-day week in Feb-
ruary, all on the 7-to-3 shift. Of the 15 days she was scheduled to work in
February, 11 were weekdays Nurses aide Marie Cramer was scheduled to
work alternating 5-day and 3-day weeks on the 7-to-3 shift throughout both
January and February Of the 16 days she was scheduled to work in Febru-
ary, 12 were weekdays In view of this evidence from Respondents' records
and the probabilities of the situation, I do not believe Kerman's denial of
Miss Goerke's credited testimony that she referred to the fact that other
part-timers retained their 7-to-3 hours.
34 Several members of Chef Rasheed Barata's family were working under
him in the kitchen. Florence Fredericks was then employed in housekeeping
and her son Barry as a porter
35 This finding is based on Miss Goerke's testimony. Kerman and Feigen-
baum both testified that in Mrs. Howley's presence, Kerman offered to try
to get Miss Goerke part time work elsewhere. Mrs Howley denied that
Kerman said Miss Goerke could get employment elsewhere and named two
other nursing homes. On the basis of the witnesses' demeanor, I believe
Miss Goerke.
36 The Goerke house was located near the Home.
the related testimony by Feigenbaum and Mrs. Howley that
after obtaining Lawrence Goerke's consent, Kerman told
Miss Goerke that she would get the first 7-to-3 shift and
her brother the second.37
d. Respondents' February manning practices
Respondents ordinarily prefer to assign work to part-
time employees rather than to full-time employees who
would be paid time and a half therefor. After advising Miss
Goerke that she had on-call status, and without calling her
in, Respondents took the following steps to augment the
number of nurses aides on duty:
Full-time nurses aides Audrey Paskitti and Young Guz-
inski were given extra hours. Miss Guzinski's scheduled
Tuesday, February 11, shift was changed to Saturday, Feb-
ruary 15, when Miss Goerke was not scheduled to work,
and Miss Guzinski worked a double shift that day.38 Also,
in the beginning or middle of February, full-time nurses
aide Keiser was asked to work double shift.
In early February, orderly Caulfield (see supra, In. 38),
who worked full time on the 7 a.m. to 3 p.m. shift, was
asked by part-time secretary Cindy Barth to work a second
shift, from 3 p.m. to I I p.m., that same day. He refused.
Later in February, Mrs. Howley asked Caulfield to come
in the next day, his day off. Caulfield refused. Mrs. Howley
observed that she did not know whom she was going to
call. Caulfield said, " . . . Charlene's on call, I'm sure she
would like to come in." Still later in February, Mrs. How-
ley again asked Caulfield to come in on his day off. Caul-
field said, "Charlene is on call, if you want somebody to
work overtime, ask her." Mrs. Howley was pleased, and
thanked him. After one of these two latter conversations
with Caulfield, Mrs. Howley relayed Caulfield's suggestion
37 The same work is performed by nurses aides like Miss Goerke and by
orderlies like-Lawrence Goerke, except that orderlies assist male patients
only
At the time of the June 1975 hearing, Lawrence Goerke, who took his
sister to the Regional Office on the day she filed her charge, was employed
by Respondents on an on-call basis. At a time not clear in the record,
inferentially about early May 1975, he requested an employment schedule
from Respondents adjusted to his forthcoming college schedule. In Decem-
ber 1974, Lawrence Goerke had become engaged to be married to another
employee at the Home, on January 31, Kerman remarked to the Goerke
siblings that too many Goerkes were working at the Home, and proposed
that the younger Goerkes go to work elsewhere; and during the investiga-
tion of this case Mrs Goerke expressed fear that her support of her
daughter's case would cause Mrs. Goerke to lose her job The hearing testi-
mony disclosed that Lawrence Goerke had attended at least one union
meeting Under all the circumstances, I draw no inference from his failure
to testify on behalf of his sister's claim that she was deprived of work, and
later discharged, because of her Union activity
38
Mrs. Goerke was the charge nurse in the B wing on the 7 a.m to 3 p in.
shift, 5 days a week. The record fails to make clear the extent to which the
extra hours worked by Paskitti and Guzinski, both of whom ordinarily
worked in the B wing, were performed while Mrs. Ggerke was on duty.
Kerman credibly testified that Respondents preferred to assign Miss Goerke
to the A wing, because any patient who was dissatisfied with a nurses' aide
would normally talk to the charge nurse and this exchange might be unsatis-
factory if the charge nurse were the mother of the aide being complained
about However, the nurses aides' work on both wings is exactly the same,
and the temporary transfer of aides between wings is not uncommon. Ac-
cordingly, the need for an aide on the B wing while Mrs Goerke was on
duty could be easily satisfied by transferring an aide from the A wing and
assigning Miss Goerke to the A wing. Indeed, this procedure was used on
the single February occasion when Miss Goerke was called in
SUMMER HILL NURSING HOME
to Feigenbaum, who said, "Give the time to someone else
in preference." 39 -
On Thursday, February 6, Mrs. Howley called in full-
time nurses aide, Holbrook, and asked her to work on the
7 a.m. to 3 p.m. shift on Friday, February 7. After being
told that she would not have to work on Saturday, Febru-
ary 8, when the posted schedule called for her to work,
Mrs..Holbrook agreed to the change.40 Later, part time
nurses aide, Gecek, who worked only when called in, was
called in to work on the 3 p.m. to 11 p.m. shift on Thurs-
day, February 13, and Friday, February 14.41
Between Miss Goerke's January 31 assignment to on-call
status and February 19, Mrs. Goerke repeatedly asked
Kerman why her daughter was not being called to work,
but he gave her no explanation.42 Miss Goerke was not
called to work during this period, and was not offered any
more work than the posted schedule called for her to re-
ceive. Nurses aide Keiser, a full-time employee who regu-
larly worked on the A wing, credibly testified without con-
tradiction that in February .1975 "we were short almost
39
My finding in this sentence is based on Mrs. Howley's testimony Feig-
enbaum testified, inter alia, that he told Mrs. Howley that Miss Goerke had
said she did not want to work any Thursday nights, while the dates of the
shifts involved are not clear, they could not have been Thursday. shifts
because Caulfield was scheduled to work every Thursday in February. Feig-
enbaum further testified on direct examination that he told Mrs Howley
that Miss Goerke did not want to work nights, but on cross-examination he
merely testified that he "possibly" told this to Mrs Howley. At one point
Kerman testified, in effect, and unlike Mrs. Howley and Feigenbaum, that
it was Kerman who was consulted about Caulfield's suggestion, but Kerman
thereafter testified that he did not know that Feigenbaum instructed Mrs
Howley not to call Miss Goerke into work As to Mrs Howley's consulta-
tion with Feigenbaum, she initially testified that she did not think that the 3
to 11-shift was involved, although-after being recalled to the stand 2 days
later-she then testified that to the best of, her memory the 7 to 3 shift was
not involved. In view of the witnesses' demeanor, and the foregoing incon-
sistencies in Feigenbaum's and Kerman's testimony, I credit the testimony
of Mrs Howley set forth in the text.
40 My findings as to the dates involved in this incident are based on the
fact that February 7 was the only Friday in February which the posted
schedule listed as Mrs. Holbrook's day off My finding that Mrs Holbrook
was asked to work the 7 a.m to Yp in shift on Friday is based partly on
Mrs. Howley's testimony (which I credit to this extent), and partly on Mrs
Holbrook's remarks later that day to charge nurse Phyllis Goerke, who
worked the 7 to 3 shift, that "she was stuck with me for another day "
However, Mrs. Goerke worked in the other wing, and did not work on
Fridays
41 In view of the foregoing uncontradicted evidence about Respondents'
February manning techniques, I accord little significance to the testimony
of Miss Seaman, the A wing charge nurse on the 7 a in. to 3 p.m. shift, that
during that month the 3 or 4 full-time nurses' aides on that wing achieved
the assignments which they undertook to do under her direction.
42 This finding is based on Mrs. Goerke's testimony Kerman testified
that the only time she brought up the matter prior to February 19 was an
occasion early in February According to Kerman, Mrs Goerke came to his
office and requested more work for her daughter, he referred to his prior
offer of part-time employment on the 3 p in to 11 p in shift, and Mrs.
Goerke said her daughter did not want that shift for dating reasons Mrs.
Howley testified, without corroboration from Kerman, that in mid-Febru-
ary Mrs. Goerke told Kerman in Mrs. Howley's presence that Miss Goerke
had to have certain Saturdays free to go to auctions, and that work from 3
p.m. to I1 p in. was not acceptable because she needed certain nights free
for dates On the basis of the witnesses' demeanor, Kerman's failure to
corroborate Mrs. Howley, the fact that Miss Goerke was already off on
alternate Saturdays, and the probabilities of the situation, I discredit the
testimony previously summarized in this footnote Rather, I credit Mrs
Goerke's testimony that she never told Kerman that her daughter did not
want to work nights because she wanted to date, or on weekends because
she wanted to go to auctions.
439
every day for a couple of weeks" and that charge nurse
Langfeld commented "that we were always short." Mrs.
Goerke credibly testified without contradiction that on a
date not clear in the record, the A wing charge nurse
(either Mrs. Langfeld or Judith Seaman) "was asking why
Charlene couldn't work, that she could use her."
3. The alleged discriminatory discharge of Charlene
Goerke
a. Miss Goerke's interview with Mrs. Howley
On Wednesday, February 19, Kerman asked full-time
nurses aide, Paskitti, to work 6 days that week. Mrs.
Goerke asked Kerman why he was asking Paskitti to work
when Miss Goerke could come in. A little while later, Ker-
man told Mrs. Goerke that her daughter could work the
next day, Thursday, February 20. This was the first time
she had been called to work as an "on-call" employee.
When Miss Goerke came to work on February 20, she
learned,for the first- time about Mrs. Holbrook's change
from the-Saturday, February 8, day shift to the February 7
day shift 43 She asked Mr. Holbrook, "... why did they do
that, I'm suppose[d] to be the person on call, why didn't
they just call me instead of messing her schedule up?" Mrs.
Holbrook said, "I don't know, go down and see Mrs. How-
ley about it." Miss Goerke then went to Mrs. Howley and
asked, " ... why wasn't I called in, I'm suppose[d] to be
the person to call, why was [Emily Holbrooks] schedule
switched around?" Mrs. Howley said that she was not
making out the schedule any more, that Kerman was mak-
ing it out. Miss Goerke laughed and said, "A lot of good
that would do me." During this conversation, Miss Goerke
spoke in about the same tone of voice she used in the hear-
ing room-that is, about average for a woman, although
Miss Goerke's voice has a somewhat carrying quality44
Mrs. Howley also spoke in her normal tone of voice, -which
is rather soft but very audible45 Miss Goerke thereupon
43 This finding is based on Miss Goerke's testimony Mrs. Holbrook's
testimony suggest that she related this incident to both Miss Goerke and
Mrs Goerke at the Home on February 6. However, Miss Goerke was not
working at the Home on February 6 Accordingly, and because Mrs
Holbrook's testimony is wholly unspecific as to dates, I conclude that her
conversation with Miss Goerke about this incident, and Mrs: Holbrook's
conversation with Mrs. Goerke to the extent it spelled out the changes in
Mrs. Holbrook's schedule, did not occur until February 20. This finding as
to the date gains further support from the absence of evidence that Mrs.
Goerke (who worked on a different wing than Mrs. Holbrook) drew
management 's attention to the matter, notwithstanding Respondents' con-
cession that she was trying to get additional work for her daughter on the 7
a in. to 3 p in shift involved here
44
Miss Goerke credibly testified that she was "not really .. excited" at
the time, "I was a little annoyed but it wasn't Mrs. Howley's fault."
45 My findings as to Miss Goerke's conversation with Mrs. Howley are
based on Miss Goerke's testimony. Mrs. Howley testified that Miss Goerke
said in a loud and angry voice, "You had no right to do that . . I'm to be
called," and "really tongue-lash[ed]" her. Mrs Howley further testified that
Miss Goerke then "calmed down and she started to walk away and then she
turned back and, said, `I'm sorry.' " Mrs. Howley testified that Miss
Goerke's tone of voice was such that she could have been, heard by, and
thus disturbed, any patients who were congregating in the adjacent lobby,
which is about 30 feet square. There are frequently patients sitting around in
the lobby, although there is no specific evidence that any were there at the
time. -
As to the substance of Miss Goerke's complaint, Mrs. Hawley testified
Continued
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tried to speak to Kerman or Feigenbaum. When told they
were not in, she told the secretary at the front desk, "I'll be
in to see them tomorrow," and left.
Thereafter, Mrs. Howley reported her conversation with
Miss Goerke to Acting Director of Nursing Friedman, who
reported it to management in the morning of February 21.
Although still in Respondents' employ at the time of the
hearing, Mrs. Friedman did not testify; and the record
contains no credible testimony about what was said during
either of these conversations46 Feigenbaum thereupon
telephoned the Goerke home. It was Mrs. Goerke's day off,
and she answered the telephone. Mrs. Goerke told Feigen-
baum that her daughter was asleep, and Feigenbaum left
word for her to please come down to the office. 47
b. Miss Goerke's discharge
(1) The warning slips
It is undisputed that during Miss Goerke's February 21
interview, during which she was discharged according to
the testimony of all witnesses who were present , Feigen-
baum prepared two "warning slips" -directed to her. Miss
Goerke, Feigenbaum, and Kerman all testified that the slip
first issued to her was the slip which, at least in its final
form, contained an entry by Feigenbaum in the appropri-
ate space, "Insubordination"; another entry by Feigen-
baum in the appropriate space, "She entered the business
office and was very hostile, demanding, insolent, and offi-
cious towards Mrs. Howley. Witnessed by Mrs. D. Moy-
lan";48 and an arbitrarily located entry hand printed and
twice underlined by Feigenbaum, "Fired." All parties
agreed to the receipt of General Counsel's Exhibit 13B,
which Respondents' counsel conceded was the top copy of
that Miss Goerke complained about Mrs. Howley's "arranging for a nurse's
aide the next day or actually a nurse's aide to cover the next day's opening by
changing her Saturday off and she was put on the schedule for that Friday"
(emphasis supplied). The February schedule, together with other relevant
testimony of Mrs. Howley, Mrs Holbrook, and Miss Goerke, establishes
that this reassignment incident had already occurred almost 2 weeks earlier,
on February 6-8. In view of this evidence and the witnesses' demeanor, I
credit Miss Goerke. In any event, for the reasons stated infra, the result
herein would be the same accepting Mrs Howley's version.
46 Kerman and Feigenbaum testified that Feigenbaum found out about
the incident from Mrs Friedman, and that Kerman found out about it from
Feigenbaum . Mrs. Howley testified that she reported "this incident" to Mrs
Friedman, who reported it to Kerman, who told Mrs. Howley to write it up
Although testifying that he asked Mrs Howley about the incident, Kerman
did not relate what she said or corroborate her testimony about his request
for a memorandum , and no such memorandum was offered into evidence I
do not credit Feigenbaum's account of Mrs. Friedman's alleged report to
him, which account substantially conforms to Mrs Howley's discredited
version of the incident (supra, fn. 46).
47 These events occurred on a Friday Feigenbaum testified, in effect, that
he asked Miss Goerke to come in because he is not at the Home on Satur-
days and Sundays, the only days then being regularly worked by Miss
Goerke. The record fails to show whether he ever received Miss Goerke's
message, left the previous day with the front desk secretary, that Miss
Goerke was already planning to come in that Friday to see Feigenbaum and
Kerman.
48 Mrs. Moylan was at that time Respondent's switchboard operator. She
was no longer in Respondent 's employ at the time of the hearing , and Re-
spondents were unsuccessful in a number of efforts , within the month be-
fore the hearing, to get in touch with her. I draw no inference from her
failure to testify
this slip and was the copy retained by Respondents, and
also to the receipt of General Counsel's Exhibit 5B, which
Miss Goerke testified was a Xerox copy of the face of the
carbon copy of the slip 49 General Counsel's Exhibit 5B is
identical to the face of General Counsel's Exhibit 13B. The
back of General Counsel's Exhibit 13B contains the entry,
which undeniedly was written by Miss Goerke, "I do not
agree to this. Charlene Goerke." No party sought to put in
evidence the back of the document from which General
Counsel's Exhibit 5B was Xeroxed. The punted line on the
face of both these exhibits, after the word "Signature," is
blank.
Miss Goerke, Feigenbaum, and Kerman all testified that
the second slip issued to her was the slip containing an
entry by Feigenbaum in the appropriate space, "Insubordi-
nation"; and another entry by Feigenbaum in the appro-
pnate space, "Opened her mouth to administration with a
threat." All parties agreed to the receipt of General
Counsel's Exhibit 13A, which Respondents' counsel con-
ceded was the top copy of the slip and was the copy re-
tained by Respondents. General Counsel's Exhibit 13A
contains on its face the following entry by Miss Goerke in
the space for "Signature," "I do not agree to this either.
C.A. Goerke," and contains no entry on the back. All par-
ties also agreed to the receipt of General Counsel's Exhibit
5A, which is a Xerox copy of the face of the carbon copy of
the second slip (supra, fn. 50). General Counsel's Exhibit
5A does not contain the entry written by Miss Goerke, but
is otherwise a complete copy of General Counsel's Exhibit
13A.
Miss Goerke's version of the discharge interview con-
flicts in material respects with the versions given by Ker-
man and Feigenbaum. Her testimony is in no way incon-
sistent with the physical characteristics of General
Counsel's Exhibits 5 and 13. On the other hand, Kerman's
and Feigenbaum's testimony is difficult if not impossible
to reconcile with such characteristics. For this reason, be-
cause of the witnesses' demeanor, and in view of the addi-
tional considerations summarized infra, section, II, C, 3b
(3), I credit Miss Goerke's version. In section II, C, 3b (2)
infra, I set forth my findings about what happened, which
findings are based on Miss Goerke's testimony and, to
some extent, on the physical characteristics of these exhib-
its.
(2) Findings of what happened during Miss Goerke's
discharge interview
After waking up, Miss Goerke went over to the Home
shortly after 11 a.m. on February 21 and asked the secre-
tary at the front desk to let Feigenbaum know she was
there. The secretary did so. After waiting for 30 to 45 min-
utes and seeing Feigenbaum walk all over the hall, Miss
Goerke asked the secretary to tell him that Miss Goerke
had an appointment that afternoon. Upon receiving this
message, Feigenbaum came out and said, in a very angry
tone of voice, ". . . if you can't wait for me, then I don't
49 As noted infra, the witnesses are in dispute about how she obtained
carbon copies of the warning slips . However, Respondents have never con-
tested that she did in fact obtain such copies, or that General Counsel's
Exhibits 5A and 5B are, as she testified, Xerox copies of such carbons.
SUMMER HILL NURSING HOME
want to see you, so just leave." Thereafter Miss Goerke sat
in the reception room a while longer.50
Eventually, Miss Goerke was called into the office where
Feigenbaum was sitting alone. As soon as she walked in
the door, Feigenbaum shouted at her, ". . . get over here,
young lady, sit down, we're sick and tired of your com-
plaining ... who do you think you are, being nasty to
Mrs. Howley?" Miss Goerke replied, "I wasn't nasty to
Mrs. Howley, I didn't say anything nasty to her." He con-
tinued to shout and yell. While filling out an "employee
warning notice" form (with a carbon copy) he told her she
was fired. Miss Goerke asked, "... why am I fired, I
didn't do anything." He separated the top copy and the
carbon copy of the warning slips, gave her the top copy,
and asked her to sign it. When she received the slip, it
stated, "Fired . . . Insubordination . . . She entered the
business office and was very hostile, demanding, insolent,
and officious toward Mrs. Howley." Miss Goerke said,
"... how can I be insubordinate to Mrs. Howley, she's not
a superior to me?" Miss Goerke wrote her name on the
back of the top copy of the warning slip, together with the
comment, "I do not agree to this," and returned it to Feig-
enbaum, who still had the carbon copy. Feigenbaum then
yelled at her, ". . . who [do you] think [you are] to write a
comment?" 51 At some point during the foregoing ex-
change, Kerman walked into the office with his lunch and
sat down.
Miss Goerke said, "I thought you needed two warning
slips to fire somebody." Feigenbaum started yelling at, her
for saying that. He shouted that he had "bent over back-
wards for [her], to give [her] hours." Miss Goerke denied
this, and he continued to yell. She said, ". . . look, I don't
have to take your abuse, I'm already fired, so I'm going to
leave." She got up to leave and said, "You can't fire me for
this flimsy excuse. It's just no reason to fire somebody .. .
We'll see what becomes of this." Before she reached the
door, Feigenbaum and Kerman were at the door knob.
One of them had his hand on the knob, and they were
shouting, ". . . who [do you] think [you are] to make the
threat to administration?" She said, "I didn't make a threat
... We'll see what's going to become of this." They shout-
ed who did she think she was, she "stabbed them in the
back." She asked what they meant by that, and they kept
shouting. She was trying to get out,52 had become "hysteri-
cal," and did not know what to do. During this exchange,
Feigenbaum raised his hand, and Kerman jumped in front
of him.
They led her back to the seat and said she was going to
get another warning slip. She asked, "How can you give me
so My findings in this paragraph are based on Miss Goerke 's testimony.
Feigenbaum's testimony suggests that she was called into the office in a
routine fashion as soon as she announced her presence to the switchboard
operator. Kerman testified that he was in the office when Miss Goerke
entered it but, when asked whether she was kept waiting for 40 minutes
before being asked to come in, he replied , "It is possible but I do not recall
I don't know of it. I can 't answer to that " On the basis of the witnesses'
demeanor and Feigenbaum's unreliability in other respects (infra, sec. II, C,
3, b, (3) ), I credit Miss Goerke.
51 The previous summer, then Director of Nursing Powers had told the
employees that if they received a warning slip, they had to sign it but were
allowed to write a comment.
52 The office is kept locked, the lock being controlled by a buzzer system.
441
a warning slip , I'm already fired?" Feigenbaum prepared a
second warning slip, also with a carbon copy, which stated,
"Insubordination ... Opened her mouth to administra-
tion with a threat." He separated the pages, kept the car-
bon copy, gave her the top copy, and told her to sign it. She
wrote on the face of the top copy, "I do not agree with this
either," signed her name after this comment , and returned
the top copy to Feigenbaum. While she was writing on this
slip, Kerman and Feigenbaum shouted who did she think
she was to make a comment, that she was a "spoiled brat"
and a "rotten kid," that they were going to call her mother,
and that they were going to have her thrown out of school.
Feigenbaum started to telephone Mrs. Goerke, and Miss
Goerke left the office, leaving behind her both copies of
both warning slips.
After leaving the office, Miss Goerke told the secretary
at the front desk that Miss Goerke wanted copies of the
warning slips. The secretary buzzed her in, and she slipped
back into the office, took the carbon copies, and got out 53
Feigenbaum was then talking to Mrs. Goerke on the tele-
phone. The substance of this call is summarized infra.
(3) Kerman's and Feigenbaum's discredited versions of
the discharge interview
Both Kerman and Feigenbaum testified that Feigen-
baum reproved Miss Goerke for allegedly being loudly dis-
courteous to Mrs. Howley, that Miss Goerke denied that
such an incident occurred, and that Feigenbaum then
wrote up the warning slip (G. C. Exhs. 5B and 13B) relat-
ing this alleged incident but without the entry "Fired."
Kerman then went on to testify that Feigenbaum "handed
Miss Goerke the warning slip for her to sign. She signed it.
He separated them and gave her her copy"; and subse-
quently testified that Feigenbaum "wrote out the words
and she signed it and he ripped off the carbon copy, gave it
to her and kept his copy." Kerman did not relate the proce-
dure Miss Goerke used for signing the back of the top
copy, as General Counsel's Exhibit 13B shows she did, be-
fore the top copy was separated from the carbon copy. 54
Kerman and Feigenbaum further testified that after
Miss Goerke received her copy of the above-described
warning slip, and as she was getting up to leave, she angrily
told Feigenbaum, "You son of a bitch, you are going to get
it for this!" 55 and told Kerman, "That goes for you too!"
After so testifying, Kerman went on to testify that Feigen-
53 Respondents ' brief comes close to admitting that Miss Goerke acquired
the carbon copies in this fashion (contrary to the testimony of both Kerman
and Feigenbaum), but contends that the manner in which she acquired
them reflects on her character However , the warning form contains the
printed instructions , "Prepare in duplicate . Place copy in employee's record
file," the secretary buzzed her into the office with knowledge that her pur-
pose was to obtain these documents, and she removed them in the presence
of both Kerman and Feigenbaum , neither of whom (so far as the record
shows) objected . I infer that employees were routinely considered as entitled
to carbon copies of their warning slips, and that Respondents' initial reten-
tion of such carbons was a departure from the usual procedure. Indeed,
Kerman and Feigenbaum both testified that Feigenbaum gave her such
carbons during the discharge interview
54 Feigenbaum merely testified , "I wrote up the warning slip. I gave it to
Charlene and asked her to sign it. She signed the warning slip."
55 Both Feigenbaum and Kerman agreed on the obscenity , but Kerman's
direct examination version of her subsequent comment was, "... you are
Con tin ued
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
baum then told her she was terminated, and then wrote out
"in duplicate" another warning slip "stating the threat that
she made to us," and that, "She signed it, [and he] gave her
her copy." Kerman did not explain why Miss Goerke's sig-
nature appears on the face of the top copy (G. C. Exh.
13A) but not on the carbon copy of this second warning
slip (G. C. Exh. 5A).56
Kerman went on to testify, on direct examination, that
Miss Goerke "had both carbon copies of her warning slips
in her hand and looked at them and says, `Does this mean
I'm fired?"' Kerman then testified that Feigenbaum re-
plied yes, that she thereupon gave "one of the carbon cop-
ies" to Feigenbaum and said, "Put the word `fired' on it,"
that Feigenbaum "took the one she gave him, put it with
his and wrote `fired' on it and then she left." On cross-
examination, Kerman similarly testified that Miss Goerke
"gave [Feigenbaum] back the copy of the warning slip and
said, `Put on it this' and he took it and put [it] with his
original and wrote the word `Fired' on it and she proceed-
ed to leave." Thereafter, Kerman was asked what "that"
warning slip said, and he replied, "I think it mentioned
something about threats to administration." Later, the
General Counsel asked Kerman, "[Feigenbaum] wrote the
`Fired' on the second warning slip; is that correct, the one
where he just fired her?" Kerman replied that Miss Goerke
had both carbon copies in her hand, that she handed Feig-
enbaum "one of the slips which she received," and that he
"put it with his warning slip, wrote the word `Fired' as she
had requested, and handed it back." As previously noted,
the word "Fired" is written on both copies of the first
warning slip (describing the alleged Howley incident) and
on neither copy of the second (purportedly describing the
alleged incident which Respondents contend motivated her
discharge). Feigenbaum was not asked on direct examina-
tion why he put the word "Fired" on the first warning slip
rather than the second, nor did he give any specific expla-
nation on direct examination for why that word appears on
both the top copy and the carbon.57 On cross-examination
he testified, "She gave me one of the warning slips. I just
put it in duplicate and I gave it to her and that was it. I
wasn't looking to see which one it was marked down on."
I do not credit Kerman's and Feigenbaum's testimony
about what happened during the February 21 termination
interview. Their testimony is difficult if not impossible to
reconcile with the physical appearance of the warning slips.
Moreover, I regard as rather improbable Feigenbaum's
and Kerman's explanation of why Feigenbaum wrote the
word "Fired" on the first warning slip (issued simulta-
neously with Miss Goerke's discharge, according to her
credited testimony) rather than on the second warning slip
going to feel sorry for this." On cross-examination, he gave Feigenbaum 's
version, set forth in the text.
56 On cross-examination , Feigenbaum testified that he could not remem-
ber whether Miss Goerke wrote anything on this second warning slip
57 He testified as follows.
I told her she was terminated I gave her another warning slip I
asked her to sign it . She signed it and at that point she said , "Does that
mean I'm fired?" I, said, "Yes, that means you are fired " "Put it down
on the paper " So I took back the warning slip, I marked down "fired"
on it. I gave it back to her and I asked her please to leave [Emphasis
supplied]
(issued simultaneously with her discharge, according to
Feigenbaum and Kerman). Feigenbaum and Kerman testi-
fied, in effect, that Feigenbaum accepted a carbon copy
from Miss Goerke, inserted carbon paper between that
copy and the top copy, collated the three sheets, wrote on
the top copy, reseparated the sheets, and returned the car-
bon copy to Miss Goerke, all without noticing that he was
inserting the entry on the wrong slip. Furthermore, a natu-
ral reading of the second warning slip ("Opened her mouth
to administration with a threat") does not encompass ob-
scenities, yet both Kerman and Feigenbaum testified (and
she denied) that she directed obscene language to both of
them, and Feigenbaum testified that such language to a
substantial extent motivated her discharge. Also, Miss
Goerke's reaction (as testified to by Kerman and Feigen-
baum) to Respondents' version of the first warning slip in
its initial form seems improbably extreme, particularly with
respect to Kerman who (according to Feigenbaum) had
not said anything. In addition, although Feigenbaum testi-
fied that during this interview he did not raise his voice and
Kerman did not participate, and Kerman testified that nei-
ther he nor Feigenbaum raised his voice and Miss Goerke's
was the only loud voice in the office, employee Keiser
credibly testified that she was outside the office -at that
time with charge nurse Langfeld, ". . . we heard loud
voices, yelling and Mrs. Langfeld said to me, `Did you hear
all that yelling in there? Mr, Kerman and Mr. Feigenbaum
must be fighting with each other.' And I said; `No, I don't
think so, I think they are fighting with Charlene,' because
she was in there." 58 For the foregoing reasons, and in view
of the witnesses' demeanor, I credit Miss Goerke's version
of the interview, including her denials that she used prof an-
ity on this occasion, and discredit Feigenbaum's and
Kerman's versions of this interview except where corrobo-
rated by Miss Goerke.
(4) Subsequent events
Immediately after Miss Goerke left the office for the first
time on February 21, -Feigenbaum called Mrs. Goerke's
number at her home. She was already on the telephone
talking to someone else, and the operator cut in with the
statement that there- was an .emergency call. Mrs. Goerke
hung up, and then received Feigenbaum's call. Feigen-
baum told her that "he had fired Charlene because of her
complaining, that she was a bad kid, that [Mrs. Goerke]
ought to throw her out of the house . . . we bent over
backwards to please her, and all she did was stab [us] in the
back." Mrs. Goerke denied that her daughter had "stab-
bed" him in the back. He replied, "That kid hates us," and
Mrs. Goerke denied this.59
5s Mrs . Howley, whose desk is some distance from Kerman's and
Feigenbaum's office, testified that she heard no loud voices emanating from
that office that day However, Miss Goerke and Kerman both testified that
loud voices were used, although they attributed the loud voices to each
other. At the hearing, Kerman and Feigenbaum both testified more loudly
than Miss Goerke and in voices which, for-men , were of normal loudness,
pitch, and carrying quality
59 My findings in this paragraph are based on Mrs. Goerke's credited
testimony. Feigenbaum initially replied "Yes" to the inquiry , "Before Miss
Goerke did you make an attempt to make a phone call to anybody?" and
stated that this call was to her mother. However, he later testified that he did
SUMMER HILL NURSING HOME
That same day, nurses aide Delores DeFilippo, in the
presence of Acting Director of Nursing Friedman, asked
Kerman and Feigenbaum why she-had not received a merit
raise promised by former Director of Nursing Powers, Re-
spondents replied that they were then giving only anniver-
sary raises. Kerman asked whether she had been in Re-
spondents' employ during the Teamsters election. When
she replied no, Respondents said that there could never be
a Union "in here" because they could not afford it 60
Between Mrs. Goerke's first employment by the Home
in September 1972 and her daughter's February 21, 1975,
discharge, Mrs. Goerke had been given one warning slip "a
long time ago." Between her daughter's discharge and the
June 1975 hearing, Kerman called Mrs. Goerke to the of-
fice on three occasions with complaints about her work. On
one of these occasions, he called Mrs. Goerke a liar. This
accusation was disproved by Respondents-' records, but he
never apologized therefor.61
Charge nurse Judith Seaman, a registered nurse, credibly
testified without contradiction that within a week after
Miss Goerke was discharged, acting director of nursing
Friedman asked her and charge nurse Langfeld, also a reg-
istered nurse, what kind of aide Miss Goerke was and
whether she had been "fresh" to them. Still according to
Miss Seaman's credited testimony, both nurses replied that
Miss Goerke was a good aide and had not been "fresh" to
them. At the hearing, Respondents' counsel moved to
strike this testimony by Miss Seaman, which I received
subject to a showing that Mrs. Friedman was then a super-
visor.
Respondents ordinarily have a director of nursing who
can hire (with Feigenbaum's or Kerman's consent), fire,
and discipline employees, who is responsible for directing
the employees in the performance of their duties, who par-
ticipates in discussions about which employees are to re-
ceive raises, and who supervises the nurses. In the absence
of Kerman and Feigenbaum (neither of whom usually
works weekends) and bookkeeper Hirsch (who apparently
does not usually work weekends either), the director of
nursing is in charge of the entire operation. In January and
February 1975, Respondents had no director of nursing,
and Mrs. Friedman was the acting director of nursing.
not call Mrs. Goerke until 15 or 20 minutes after Miss Goerke had left
Feigenbaum was admittedly uncertain about what he said, but testified that
he told Mrs Goerke that he daughter had "called [him] an SOB and she
made a threat to us." He denied telling Mrs. Goerke that "We bent over
backwards for-your daughter," and that she "stabbed us in the back " Both
Feigenbaum and Kerman further testified that Feigenbaum reached Mrs.
Goerke the first time he dialed, but Kerman was not asked about the con-
tents of this conversation, except that on cross-examination he denied the
"stab in the back" language. In view of the witnesses' demeanor, Kerman's
failure to corroborate much of Feigenbaum's testimony, the inconsistencies
in such testimony, and the consistency between Mrs Goerke's testimony
about the telephone call and Miss Goerke's credited testimony about the
discharge interview, I credit Mrs. Goerke.
60 My findings in this paragraph are based on Miss DeFilippo's undenied
testimony.
61
My findings in this paragraph are based on Mrs. Goerke's testimony.
Although Mrs. Goerke testified that Feigenbaum was present during the
"liar", incident, and Kerman that Feigenbaum was present during an inci-
dent involving her speech therapy notes, he was not asked about such mat-
ters. In view of the witnesses' demeanor and Kerman's unreliability in other
respects, I credit her testimony in this respect and discredit his where incon-
sistent
443
Mrs. Howley credibly testified that when Friedman was
acting director of nursing, she could not hire or fire, that
she supervised the wings and took care of any nursing
problems that came up, "but all of this was under Mr.
Feigenbaum and Mr. Kerman," and that when an employ-
ee who was scheduled to work called in sick, Mrs. Fried-
man would call or arrange to call someone in 62 Charge
nurse Seaman credibly testified that when Mrs. Friedman
was acting director of nursing, "We went to her with our
problems." Orderly Caulfield credibly testified that during
this period, if he wanted to take a day off, he would ask
Mrs. Friedman or Mrs. Howley. There is no direct evi-
dence about who was in charge of the operation in January
and February 1975 in the absence of Feigenbaum, Ker-
man, and Hirsch. Feigenbaum testified that during this pe-
nod he or Kerman made determinations with respect to
hiring and firing, and that Mrs. Friedman "was basically
there as a liaison between the administration and the nurs-
ing staff, taking care of basically if they needed supplies
... she really had no powers without prior approval from
the administration." Feigenbaum further testified that
"possibly" Respondents gave her a raise when she became
acting director and withdrew the raise when a new director
was appointed. So far as the record shows, the director of
nursing was the only supervisor of Respondents' approxi-
mately 30 nurses, nurses aides, and orderlies other than
Feigenbaum, Kerman, and bookkeeper Hirsch.63 About
February 10, 1975, Mrs. Howley typed up a memorandum
directing "R.N.'s, L.P.N.'s, Nurses' Aides and Orderlies"
to fill in their respective March schedules by a given date.
Mrs. Friedman signed this memorandum, which was post-
ed at the Home, over the typewritten entry, "Barbara
Friedman, R.N./Director of Nursing Service." I conclude
that while Mrs. Friedman was acting director of nursing
she had the authority, in Respondents' interest and in the
exercise of independent judgment, to assign and responsi-
bly to direct employees and, therefore, that during this pe-
riod she was a supervisor within the meaning of Section
2(11) of the Act. Accordingly, Respondents' motion to
strike Miss Seaman's testimony about Mrs. Friedman's
conversations with her and Mrs. Langfeld is hereby denied.
D. Analysis and Conclusions
1. The alleged Section 8(a)(1) violations
I agree ,with the General Counsel's contention that Re-
spondents violated Section 8(a)(1) of the Act when Ker-
man asked Mrs. Goerke in January 1975 what she had
heard of union activity and the subject matter of her con-
versation with a suspected union adherent; when supervi-
sor McCraw asked employee Mulvey if he had heard any-
thing about a Union; when supervisor McCraw asked
employee Florence Fredericks whether she had asked a fel-
low employee 'to "go along with" a union, told her that
62
Miss Seaman testified that she presumed that when Mrs Friedman was
the acting director, she had the same powers as the director. Because the-
General Counsel failed to establish that Miss Seaman had a basis for her
testimony that Mrs. Friedman could hire, fire, and discipline, I hereby grant
Res3pondents' motion to strike such testimony.
6 There is no contention that charge nurses are supervisors
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those responsible for union activity, literature, or authori-
zation cards would be dismissed, and said that he knew
who the instigators were; when supervisor McCraw asked
employee Barry Fredericks whether he knew anything
about a union meeting and threatened to discharge who-
ever was starting up the Union; and when supervisor Mc-
Craw warned employee Caulfield, in other employees'
hearing, that top management could overhear him and
knew every thing the employees were talking about, and if
he did not "watch" himself he and other employees were
going to get into trouble with this union talk.
Contrary to Respondents' apparent contention, I con-
clude that McCraw's statements to Florence and Barry
Fredericks and to Caulfield constituted threats of reprisal
and, therefore, were unprotected by Section 8(c) of the
Act.64 In finding unlawful the interrogation of Mrs. Goerke
and Florence and Barry Fredericks, I note that McCraw's
interrogation of the Frederickses was accompanied by
threats of reprisal, that McCraw also threatened reprisals
during his conversation with employee Caulfield, that
Kerman's interrogation of Mrs. Goerke was followed by
unlawful discrimination against her daughter for union ac-
tivity, that Mrs. Goerke and (probably) Barry Fredericks
gave replies which falsely disclaimed knowledge about the
Union, that employees were given no assurances against
reprisals, and that the interrogation had no legitimate pur-
pose.
2. The alleged discrimination against employee Charlene
Goerke
Respondents' opposition to unionization is shown by
McCraw's January 1975 threats that top management
would effect reprisals against known union adherents; by
Respondents' June 1974 assertion to the employees that
they would not get better wages and benefits if a union
were seeking them; by Respondents' extensive efforts dur-
ing the 1974 Teamsters campaign surreptitiously to find
out which employees favored the Union, which were
speaking to union representatives, what they were talking
about, and what literature was being distributed; by Re-
spondents' January and February 1975 efforts to obtain
information about the renewed union activities; and by
Respondents' assertion on the day of Miss Goerke's dis-
charge that there would never be a Union in the Home
because Respondents could not afford it.
Further, the record shows that Charlene Goerke induced
District 1199 to begin an organizing campaign and was a
principal employee activist in that campaign, and I con-
clude that Kerman and Feigenbaum knew of or suspected
64 Caulfield testified that he did not believe that McCraw spoke in a
"malicious manner . . he kind of laughed and I got the impression [from
his laugh] that he was trying to relate to me the feeling that I'm taking the
situation into my own hands " No similar testimony was adduced from the
other employees (including Miss Goerke) who heard McCraw's remarks to
Caulfield, or from the Fredenckses, whom McCraw likewise threatened In
any event, McCraw's statement that continued overt Union activity would
get the employees in trouble with Respondent Kerman would hardly be
negated by the employees' belief that such activity would not get them into
trouble with maintenance supervisor McCraw. See Central Air Corp, 216
NLRB No. 40 (1975) (ALJD, sec. II, E, 1), Hanes Hosiery Inc, 219 NLRB
No. 47 (1975); and cases cited.
her union leadership. Thus, in August 1974 Miss Goerke
wore a prominent Teamsters button seen by Kerman and
Feigenbaum, she later admitted to Kerman in response to
his inquiry that she had voted for the Teamsters, in Janu-
ary 1975 Supervisor McCraw observed her in a group of
four employees who were talking about plans to transport
employees to the January 24 meeting, and, also in January
1975, McCraw stated that he knew who the "instigators"
were. Moreover, during both the 1974 Teamsters campaign
and the 1975 Local 1199 campaign, Respondents made ex-
tensive efforts to find out all they could about the organiz-
mg activity, including the identity of those who favored the
Union, and I infer that they found out what they were
anxiously looking for.65 Further, as there is no evidence
that Miss Goerke had theretofore done anything to incur
Respondents' wrath other than support the Teamsters, I
conclude that Kerman was referring to such activity when
he told Mrs. Goerke, in late December 1974, that Miss
Goerke "stabs us in the back." I cannot and do not credit
the testimony of Feigenbaum and Kerman that they heard
nothing whatever of any union activity at the Home in
December 1974 through February 1975. Such testimony is
squarely refuted by Mrs. Goerke's undenied testimony that
she reported this activity to Feigenbaum in December 1974
and was interrogated about it by Kerman in January 1975;
and by Miss DeFilippo's undenied testimony that during a
meeting with Kerman and Feigenbaum on the day Miss
Goerke was discharged, she was told that there could never
be a Union at the Home because Respondents could not
afford it.
Just before the first union meeting, Miss Goerke asked
both Mrs. Howley and Mrs. Friedman to delay until Janu-
ary 31, when Miss Goerke would find out her school sched-
ule, her work schedule for the 4-week period beginning
February 2. Both Mrs. Howley and Mrs. Friedman agreed.
Moreover, Respondents had previously adjusted the work-
ing hours of Miss Goerke and other students to their
school schedule, sometimes on short notice, without assert-
ing that such adjustments presented any special problem.
Further, the record shows that the number of nurses aides
and orderlies who work on each shift is to some extent
flexible,66 and that during the period covered by a particu-
lar posted schedule, the employees' schedules are frequent-
ly changed on short notice because, for example, a particu-
lar employee is out sick. However, a few days after the first
union meeting, in which Miss Goerke was one of the most
61 Cf. N.L.R.B. v. Dove Coal Company and Lark Coal Company, 369 F.2d
849, 851 (C A 4, 1966) In view of such 1974 efforts by Kerman and Feigen-
baum, Kerman's January 1975 interrogation of Mrs Goerke, and McCraw's
demeanor, I do not believe his testimony that he did not mention to Ker-
man and Feigenbaum the union "talk" McCraw heard in January and Feb-
ruary 1975
66 B-wing charge nurse Goerke testified that when a scheduled nurses'
aide failed to show up, Mrs Goerke never called anyone in but worked with
what she had; but that at least during one period, the A-wing charge nurse
would call in a substitute In reponse to Miss Goerke's January 21 request
for more hours during January, she was scheduled for 2-hour stints the next
2 days, and had her days and shifts for the following week changed, without
(so far as the record shows) any compensating changes in anyone else's
schedule Miss Goerke's testimony that Respondents were always short-
handed on weekends was to a significant extent corroborated by Mrs How-
ley and to some extent by her and nurses aide Holbrook's testimony that
Mrs Holbrook was pleased when her day off was changed from Saturday to
Friday
SUMMER HILL NURSING HOME
active participants, Respondents disregarded Mrs.
Howley's and Mrs. Friedman's assurances that Respon-
dents would withhold her February 2- March 1 schedule
until January 31, and instead posted that schedule on Jan-
uary 29. Moreover, although Mrs. Howley testified, in ef-
fect, that Feigenbaum told her to give Miss Goerke week-
end shifts because they could not conflict with any school
schedule, Respondents made no effort to compensate for
her loss of 7-to-3 shifts on Mondays and alternate Thurs-
days by scheduling her for such shifts on the alternate Sat-
urdays when she had not theretofore been scheduled to
work, and during which Respondents were often short-
handed. When on January 31 she asked for more weekday
work on the 7-to-3 shift, preferably 5 shifts a week but at
least on the Mondays and alternate Thursdays she had pre-
viously worked, Respondents offered her 3-to-11 shifts on
Thursdays. She explained that these would conflict with
her anticipated school schedule, and pointed out that part-
timers on the 7-to-3 shift who were junior to her had not
had their hours cut. Kerman said that he could not "just
shift the schedule around" for the Goerke siblings (al-
though the schedule was not to go into effect for 3 days
and would be subject to frequent modifications even after
it became current), added that too many Goerkes were
working for Respondents, and tried to mduce the Goerke
siblings to get work elsewhere. Notwithstanding Miss
Goerke's statement that she faced loss of her father's sup-
port payments and particularly needed a job, Respondents
merely said she would be put on an on-call status.
Further, Respondents did not in fact honor that status.
Rather, it gave overtime and double-shift work (at over-
time rates) to full-time nurses aides who worked on the
7-to-3 shift, changed the days off of full-time nurses aides
on that shift, used the services of "call-in" employee Ge-
cek, sought to induce another full-time- nurses aide and a
full-time orderly to work at overtime rates on their sched-
uled days off, and-even with these manning efforts-
"were short almost every day for a couple of weeks"-all
without giving Charlene Goerke an opportunity to perform
"call-in" work.
When Miss Goerke learned something about this dis-
crimination against her and complained to Mrs. Howley
about it, Feigenbaum called Miss Goerke into his office,
yelled at her, and accused her of being "nasty" to Mrs.
Howley. Miss Goerke truthfully denied being "nasty," but
Feigenbaum failed to call Mrs. Howley or Mrs. Friedman
(who had told him about the Howley incident) into the
office to resolve the conflict, although both were then phys-
ically present in the Home. Rather, he discharged Miss
Goerke-who was Respondents' senior nurses aide, had
received an individual wage increase about a month earlier
(just before she renewed her union activity), and had been
complimented by Respondent Kerman for the care of his
aunt-on the ground that she was insubordinate to and
"very hostile, demanding, insolent and officious towards
Mrs. Howley." Miss Goerke sought to preserve her version
of the Howley conversation by writing; a comment on the
warning slip, and'Feigenbaum again yelled at her. When
Miss Goerke asserted that two warning slips were needed
to discharge someone, that the tendered discharge explana-
tion was "flimsy," and "We'll see what becomes of this,"
445
Feigenbaum and Kerman blocked her exit, shouted that
she had "stabbed them in the back" (thus echoing
Kerman's prior description of her Teamsters activity), and
sought to regularize the paper basis for her prior discharge
by issuing her a second warning slip. Feigenbaum and Ker-
man further shouted at her for writing a comment on this
warning slip too, called her a spoiled brat and a rotten kid,
and threatened to have her thrown out of school. Immedi-
ately thereafter, Feigenbaum telephoned Mrs. Goerke that
he had fired Miss Goerke because of her complaining, that
she was a "bad kid," who should be thrown out of the
house, and that she had "stab[bed] them in the back."
Thereafter, Respondents through supervisor Friedman un-
successfully tried to obtain evidence that Miss Goerke was
incompetent and "fresh."
The evidence persuades me, and I find, that Respon-
dents withheld work from Miss Goerke in the period Feb-
ruary 2 to 21 because of her union activity. I find that
Respondents disregarded their promises to Miss Goerke to
withhold her February 2-March 1 schedule until January
31 in order to supply a paper basis for claiming that no
additional work was available to her by the time she was
able to tell Respondents when her school schedule permit-
ted her to work. I find that but for Respondents' resent-
ment at her "stabbing" them "in the back" by her union
organizational activities, Respondents would have kept
their promise to withhold her work schedule until January
31 and (because she then learned she could work all 7-to-3
shifts and some 3-to-I 1 shifts) would have given her, at the
very least, the 7-3 shifts she had been working plus first
call on other 7-to-3 shifts and non-Thursday 3-to-11 shifts.
Moreover, I conclude that Respondents' subsequent dis-
charge of Miss Goerke constituted discrimination to dis-
courage union activity, in violation of Section 8(a)(3) and
(1) of the Act. Particularly in view of Respondents' "stab in
the back" language, and their prior associations with the
Goerke family on closer terms than are incident to a mere
employer-employee relationship, I believe that Respon-
dents regarded Miss Goerke's union activity as singular
disloyalty and discharged her upon concluding that such
disloyalty was aggravated beyond endurance by Miss
Goerke's refusal docilely to submit to the limited discipline
imposed by Respondents' discriminatory reduction in her
working hours. In so finding, I infer (absent credible con-
trary evidence) that Mrs. Howley and Mrs. Friedman gave
top management an accurate account of Miss Goerke's re-
marks to Mrs. Howley, and conclude that Respondents
found such mild remarks offensive only because they pro-
ceeded from a union activist and related to her complaints
about unlawful discrimination because of such activity.67
67 Because Miss Goerke 's complaints to Mrs Howley arose from Respon-
dents' unlawful discrimination against Miss Goerke with respect to work
assignments, I would find Miss Goerke 's discharge unlawful assuming ar-
guendo that both Mrs. Howley and Mrs Friedman conveyed to Feigenbaum
and/or Kerman Mrs Howley's discredited testimonial version of the con-
versation , and that these Respondents discharged her because of an errone-
ous belief in the accuracy of these reports. See N LR B v. Burnup & Sims,
379 U.S 21 (1964), Cusano v. N L R.B, 190 F. 2d 898, 902-903 (C.A 3),
Allegheny Pepsi-Cola Bottling Company v. N LR.B., 312 F.2d 529, 531 (C A
3, 1962). Indeed, because Miss Goerke's complaints arose from such unlaw-
ful discrimination, even if Mrs. Howley's discredited version of the conver-
Continued
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The arguments advanced in Respondents' brief rest pri-
marily on the testimony of Respondents' witnesses that on
January 22-24, Miss Goerke asked Mrs. Howley to defer
preparation of the entire nursing schedule until Miss
Goerke knew what hours her school schedule would permit
her to work; that following Miss Goerke's unsuccessful
registration efforts she asked for full-time work on the 7-3
shift and would accept nothing less; and that during her
termination interview she used obscene language. For the
reasons previously indicated, I discredit the testimony to
this effect 68
However, I conclude that the evidence fails preponder-
antly to show that Respondents discriminatonly withheld
work from Miss Goerke for the period prior to February 2.
Miss Goerke did not advise Mrs. Howley until January 21
about the semester break and that Miss Goerke wanted
more hours during the rest of January; and did not so
advise Mrs. Fnedman until later that -week. Moreover,
both Mrs. Howley and Mrs. Fnedman did in fact give Miss
Goerke more hours then called for on the posted schedule;
indeed, Mrs. Howley gave her such extra hours the very
day after being asked for them.
CONCLUSIONS OF LAw
1. Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District 1199 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondents have violated Section 8(a)(1) of the Act
by threatening employees with reprisals for union activity
and by interrogating them with regard to union activity in
a manner constituting interference, restraint, and coercion.
4. Respondents have violated Section 8(a)(3) and (1) of
the Act by withholding work from Charlene Goerke be-
tween February 2 and 21, 1975, and discharging her on
February 21, 1975, in each case to discourage union activi-
ty.
5. Such unfair labor, practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. Respondents have not, in violation of Section 8(a)(3)
and (1) of the Act, withheld work from Charlene Goerke
between January 11 and February 1, 1975, inclusive.
THE REMEDY
Having found that Respondents have violated the Act in
certain respects, I shall recommend that Respondents be
required to cease and desist therefrom. Because Respon-
dents' unfair labor practices include the discriminatory dis-
charge of an employee leader in the organizing campaign,
an unfair labor practice which "goes to the very heart of
the Act" (N.L.R.B. v. United Mineral & Chemical Corpora-
sation were accurate (supra, In. 46) that conversation could not serve as a
legal justification for Miss Goerke's discharge. N.L R.B v M & B Head-
wear Co, Inc., 349 F 2d 170, 174 (C A. 4, 1965), Mueller Brass Company, 204
NLRB 617, 620 (1973), enfd. 501 F.2d 680 (C.A. 5, 1974)
68 In my view, the evidence herein meets the requirements of the portion
of Lozano Enterprises v. N L.R B, 357 F.2d 500, 502 (C.A 9, 1966) quoted
in Respondents' brief. In any event, I regard such language in Lozano as
irreconcilable with N.L.RB v. Walton Mfg Co., 369 U S. 404 (1962)
tion, 391 F.2d 829, 837-838 (C.A. 2, 1968) ), and threats to
discharge other union adherents, Respondents' unlawful
conduct leads me to anticipate that unless restrained, they
will engage in "continuing and varying attempts to attain
the same end in the future" (N.L.R.B. v. Express Publishing
Co., 312 U.S. 426, 437-439). Accordingly, I shall recom-
mend that Respondents be required to cease and desist
from infringing on employee rights in any other manner.
Pan American Exterminating Co, Inc., 206 NLRB 298
(1973); N.L.R.B. v. Southern Transport, Inc., 343 F.2d 558,
560-561 (C.A. 8, 1965). I shall also recommend that Re-
spondents be required to offer Charlene Goerke immediate
reinstatement to the job of which she was unlawfully de-
prived, 'or, in the event such job no longer exists, to a sub-
stantially equivalent job, without prejudice to her seniority
or other rights and privileges, and make her whole for any
loss of earnings by reason of the discrimination against her,
by payment to her of a sum of money equal to that which
she would have earned, but for the discrimination against
her, from February 2, 1975, to the date of a valid offer of
reinstatement, less her net earnings during this period,69 to
be computed in the manner described in P. W. Woolworth
Company, 90 NLRB 289 (1962), with interest as described
in Isis Plumbing & Heating Co., 138 NLRB 716 (1950). In
addition, I shall recommend that Respondents be required
to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law,- and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended Order.
ORDER70
Respondents Neil Kerman , Melvin Feigenbaum, Jacob
Kresch , and David Kerman, a Co-Partnership , d/b/a Sum-
mer Hill Nursing Home, their officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in District 1199, National
Union of Hospital and Health Care Employees , RWDSU,
AFL-CIO, or any other labor organization , by discharging
or withholding work from employees , or otherwise discrim-
inating in any manner in respect to their hire or tenure of
employment or any term Or condition of employment.
(b) Interrogating employees concerning their and other
employees ' union membership and activities , in a manner
constituting interference , restraint , and coercion.
(c) Threatening employees with reprisals for activity on
behalf of District 1199 or anyother labor-organization.
(d) In any other manner interfering with , restraining, or
coercing their employees in the exercise of rights guaran-
teed them in Section 7 of the Act. -
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
69 Such net earnings shall not include earnings from Respondents prior to
her discharge
70 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order and all objections thereto shall he
deemed waived for all purposes.
SUMMER HILL NURSING HOME
(a) Offer Charlene- Goerke immediate reinstatement to
her former job or, if her former job no longer exists, to a
substantially equivalent job, without prejudice to her se-
niority or other rights and privileges, and make her whole
for any loss of pay she may have suffered by reason of the
discrimination against her , in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful to an analysis of the amount of backpay due
under the terms of this Order.
(c) Post at their place of business in Old Bridge, New
Jersey, copies of the attached notice marked "Appen-
dix." 71 Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being duly signed by
Respondents' representatives, shall be posted by Respon-
dents immediately upon receipt thereof, and be maintained
by them in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that the said
notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director for Region 22, in writ-
ing, within 20 days after receipt of this Order, what steps
Respondents have taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint is dis-
missed to the extent that it alleges discrimination against
Charlene Goerke effective prior to February 2, 1975.
71
In the event that the Board's Order is enforced by a Judgment of the
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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED By ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
447
the law and we have been ordered to post this notice. We
intend to carry out the Order of the Board and abide by
the following:
The National Labor Relations Act give employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion -
To refrain from any such activities.
WE WILL NOT threaten to punish our employees for
activity on behalf of District 1199, National Union of
Hospital and Health Care Employees , RWDSU,
AFL-CIO, or any other labor organization.
WE WILL NOT ask our employees about union activity
in a manner constituting interference , restraint, or
-coercion.
WE WILL NOT discharge , withhold work from, or
otherwise discriminate against any employee to dis-
courage membership in District 1199 or any other
union.
WE WILL offer Charlene Goerke reinstatement to her
old job or, if that job no longer exists, to a substantial-
ly equivalent job, and make her whole, with interest,
for loss of pay resulting from her failure to get work
and her termination.
Our employees are free to exercise any or all these rights,
including the right to join or assist District 1199 or any
other union . Our employees are also free to refrain from
any or all such activities , except to the extent that union
membership may be required by a collective-bargaining
agreement as a condition of continued employment , as per-
mitted by the proviso to Section 8(a)(3) of the Act.
-WE WILL NOT in any manner interfere with, restrain, or
coerce employees in the exercise of these rights.
NEIL KERMAN, MELVIN FEIGENBAUM, JACOB
KRESCH AND DAVID KERMAN, A CO -PARTNERSHIP,
d/b/a SUMMER HILL NURSING HOME