Summit Nursing and Convalescent Home, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1973

204 N.L.R.B. 70 (N.L.R.B. 1973)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summit Nursing and Convalescent Home , Inc. and Na-
tional Union of Hospital and Nursing Home Em-
ployees, Local 1199H , an affiliate of Retail,
Wholesale, Department Store Union , AFL-CIO.
Cases 9-CA-6637 and 9-CA-6871
June 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On January 26, 1973, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, General Counsel filed ex-
ceptions and a supporting brief and Respondent filed
an answering 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 briefs
and has decided to affirm the rulings, findings, and
conclusions, as modified,' and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
I Members Fanning and Penello find it unnecessary to reach , and there-
fore do not adopt , the Administrative Law Judge's finding that the apparent
photographing of outside union organizers and an employee, which was
observed by one employee , was legitimate surveillance They find that this
incident was so isolated that there is no basis for finding a violation of Sec
8(axl), as alleged . Chairman Miller, contrary to his colleagues , agrees with
the Administrative Law Judge, for the reasons stated by him, that the allega-
tion should be dismissed.
DECISION
Union, upon separate complaints issued on January 26 and
April 24, 1972, respectively, by the General Counsel for the
National Labor Relations Board, hereinafter referred to as
the Board, against Summit Nursing and Convalescent
Home, Inc., hereinafter referred to as the Respondent or the
Company, alleging violations of Section 8(a)(1), (3), and (4)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), and upon answers timely
filed by the Respondent denying the commission of any
unfair labor practices.
All parties were represented by counsel, and were afford-
ed full opportunity to examine and cross- examine witnesses,
to introduce evidence pertinent to the issues, and to engage
in oral argument . Timely briefs were subsequently filed by
counsel for the General Counsel and the Respondent.
Upon the entire record in this case, and from my observa-
tion of the witnesses , and their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and the inherent probability of
testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S.
474, 496 (1951) ), I make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Summit Nursing and Convalescent Home, Inc., an Ohio
corporation, operates a proprietary nursing and convales-
cent home in Cincinnati, Ohio, where it provides nursing
care on a 24-hour basis for all patients under a license
granted by the State of Ohio. During the 12-month period
immediately preceding the issuance of complaint, the Re-
spondent had gross revenue in excess of $100,000 from the
operation of its nursing and convalescent home. During this
period, Respondent had a direct inflow of goods and prod-
ucts valued in excess of $3,500 which it purchased and
caused to be shipped directly in interstate commerce to its
Cincinnati, Ohio, operation from points located outside the
State of Ohio.
The parties admit, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The parties admit , and I find, that National Union of
Hospital and Nursing Home Employees , Local 1199H, an
affiliate of Retail , Wholesale , Department Store Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
STATEMENT OF THE CASE
WELLINGTON A. GILLIS , Administrative Law Judge: This
case was teed before me at Cincinnati Ohio , and is based
upon charges filed in December 1, 1971, in Case 9-
CA-6637, and on March 9 , 1972, in Case 9-CA-6871, by
National Union of Hospital and Nursing Home Employees,
Local 1199H , an affiliate of Retail , Wholesale, Department
Store Union , AFL-CIO, hereinafter referred to as the
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether, on November 26 and December 2, 1971,
Respondent's officials engaged in two separate incidents of
surveillance of Respondent 's employees , in violation of Sec-
tion 8(a)(1) of the Act.
204 NLRB No. 19
SUMMIT NURSING & CONVALESCENT HOME 71
2. Whether on March 8, 1972,' the Respondent dis-
charged its employee, Dorothy Jackson, because of her ac-
tivities on behalf of the Union and/or because she gave and
was about to give testimony under the Act, in violation of
Section 8(a)(4) of the Act.
B. The Facts
1. Background
The Respondent, a 165-bed nursing home providing
skilled nursing care to patients of both sexes over the age of
21, is controlled by a four-man board of directors, headed
by Leon Constam, its president. The day-to-day operations
of the home are in the hands of Frances Glaser, the adminis-
trator , who is a registered nurse . In this capacity Glaser is
in charge of the various departments , including the nursing
department , headed by a director of nursing , Evalin Kinner,
and the recreation department, run by its recreation direc-
tor, Norma Robbins. The home operates on three shifts, 7
a.m. to 3 p.m., 3 p.m. to I1 p.m., and II p.m. to 7 a.m., with
a registered nurse supervising each shift . As the adm inistra-
tor, Glaser is responsible for making out schedules for all
nursing personnel , for hiring and firing professional and
nonprofessional nursing personnel , and for evaluating the
work performance of all such personnel.
In late May or early June 1971, the Union commenced its
organizing campaign at the Respondent 's nursing home.3
Arthur Bivins , the main union organizer , personally distri-
buted union literature to employees at least once a week
between August and the first part of December, stationing
himself at the entrance to the nursing home grounds.
The nursing home with a parking area in the front is
located on a hill some 270 feet from the main road, La
Feuille Avenue, and is approached by way of a driveway.
The drive, wide enough for two automobiles to pass, is very
steep as it leaves the entrance on La Feuille Avenue and
becomes a fork approximately 175 feet up, part continuing
on to the parking lot, and the other bearing off to the right
to the rear of the building . From the entrance one can see
the top of the drive, but not the building.
2. The November 26 incident
The union distribution apparently was carried on without
incident throughout the fall until November 26. On this
afternoon , Dianne Capalbo , at the time an organizer for the
Union, together with another organizer, Rose Tinklenberg,
arrived at the home about 3 p.m. with the intention of
distributing leaflets and talking with employees about the
upcoming election , which at the time was scheduled for
December 8.
Upon arriving at the driveway entrance to the property,
1 Unless otherwise noted , all dates hereinafter set forth refer to the fall of
1971 or winter of 1972
2 At the close of the General Counsel 's case, I granted Respondent's mo-
tion to dismiss as it related to the 8(a)(3) complaint allegation concerning
Dorothy Jackson, on the ground that the General Counsel had failed to make
out a prima facie case.
i According to Glaser, the charging Union is but one of three labor organi-
zations attempting to organize the Respondent , and union organizers are
frequently on the premises , sometimes as early as 6 15 a in
Capalbo and Tinklenberg walked up the drive and around
the back of the building, without incident, and then pro-
ceeded back down the drive. When approximately one-third
of the way down, Capalbo noticed an automobile driving
up. She motioned for it to stop, which it did. Capalbo
stepped to the side opposite the driver, who happened to be
Dorothy Jackson, a nurses aide employee, and handed her
a leaflet . Capalbo introduced herself and asked Jackson her
name , whether she had filled out an authorization card, and
whether she knew about the election coming up. Jackson
told Capalbo her name and replied that she had sent her
card in about a week before.
At about that time, both Capalbo and Jackson noticed
two women standing at the top of the drive, some 35 feet
away and at a much higher elevation, one with a camera and
appearing to be taking pictures. At that point, according to
Capalbo, Jackson drove off up the remainder of the drive
and went to work, and Capalbo and Tinklenberg continued
on down the hill to the entrance, and then left for the
afternoon .4 During this period, one other car, carrying nurs-
es aides Connie Ward and Vicky Elliott, arrived and drove
up the drive some distance behind Jackson.
Glaser's explanation for her conduct, and that of Robbins
who held the camera, is that on this afternoon, upon looking
out her window onto the parking lot, she noticed the two
girls wandering around the lot. Shortly thereafter an em-
ployee reported to Glaser that the two were passing out
literature in the parking lot and putting it on automobiles.
Glaser, who assertedly had had prior incidents of union
organizers throughout the premises, went out to the lot and
directed the two to leave the property immediately, threat-
ening to call the police. Glaser returned to the building and
called the police, who advised her that they would send a
policeman out right away. She then called Mr. Emmett
Moore, attorney, and inquired as to her rights with regard
to trespassing. Moore allegedly told Glaser that she might
get injunctive relief, but that she needed proof. In reply to
Glaser's further inquiry, Moore told her that a picture
would be the best proof.
Glaser then told Robbins to get her camera, that she
wanted some pictures of the two girls. Robbins got her
Polaroid camera and, with Glaser, went down the drive to
a point some 100 feet from where the girls were. Robbins
attempted to take a picture, placing the camera to her face,
but realized immediately that there was no film in the cam-
era. Glaser left right away to check with the police and
Robbins followed shortly thereafter.5
3. The December 2 incident
Between 2:30 and 3 p.m. on the afternoon of December
2, Capalbo and Arthur Bivins, another organizer for the
Union, engaged in a leaflet distribution at the La Feuille
Street entrance to the Respondent's premises , Capalbo sta-
Capalbo, who testified that one of the women was Glaser, could not
remember which had the camera, and could not identify Norma Robbins,
who was present in the courtroom, as the other woman
5 Robbins corroborated the essential points of Glaser's testimony, used
above Capalbo, the only one of the two organizers to take the witness stand,
testified that she could not remember talking with anyone in the parking lot.
Accordingly, I credit Glaser as to the confrontation in the parking lot
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioning herself on the curb on one side of the entrance and
Bivins on the curb on the other side. After several employee
cars had entered and accepted literature from the organiz-
ers, Leon Constam drove up. He initially drove past the two
union people, and then backed his car down to within a few
feet of the intersection of La Feuille Avenue. Constam
brought his car to a stop, partially diagonally, but not so as
to block the entrance. He then jumped out of his car and
yelled at two of them to "get off mein property, get off mein
property." Capalbo testified that some employees contin-
ued to drive past, but that no employees were present during
Constam's shouting. Capalbo asked Constam if he were the
owner of the nursing home, receiving an affirmative reply.
Glaser, who had heard Constam yelling, left the building
and, from the top of the hill, told Constam to please come
up. Constam then got in his car and drove on up the hill to
his office.
To the extent that the testimony of Bivins and Constam
varies from these findings, it is not credited. Neither was an
impressive witness. Bivins' testimony to the effect that Con-
stam proceeded half way up the drive and "just sort of stood
there for a while," is not corroborated by Organizer Capal-
bo, and is refuted by Glaser, and by Constam as well. Bivins
also testified that he saw employees coming down the hill,
and that he knew they were employees because some of
them were wearing name tags on their uniforms. Apart from
the fact that some six witnesses testified that Respondent's
employees wore no name tags, I question the veracity of
Bivins' testimony in this regard. The day was very cold and
it had started to snow, and was not the kind of day that
employees would drive off from work in cold automobiles
without their coats. Constam's testimony from the witness
stand was difficult for me to understand, and, on the cold
record, next to impossible.
4. The March 8 termination of Dorothy Jackson
Dorothy Jackson, the only alleged discriminatee herein,
was hired as a nurses aide in September 1971, and worked
for the Respondent in this capacity on the 3-to-I1 shift until
her termination on March 8, 1972. On this date, around 3
p.m., shortly after Jackson had reported for work, Ann
Mullen, the 7 a.m.-to-3 p.m. supervisor who was working
late, upon stepping off the elevator on the second floor,
noticed Gregg Zwick, an orderly, standing at the desk at the
nurses' station, and Jackson sitting on a table top. Mullen
said to them, "since you don't seem to be having anything
to do right now, why don't you go in the dining room and
start folding the patients' clothes." Jackson jumped up and,
in a loud manner, informed Mullen that this was not her
duty and that she did not have to do it. She then went over
to the bulletin board and pointed to a paper on the board
and said, "It's the I 1 to 7 duty." 6
Mullen, upset over the incident, went downstairs and
reported it to Evalin Kinner, director of nursing, asking her
to handle the matter from that point on. In the meantime,
Zwick and Jackson proceeded to fold the clothes. A few
minutes later, Kinner, accompanied by Mullen, went back
6 Nurses aide Mary Bedford , who was a witness to this incident , as well
as Zwick , corroborated Mullen to the effect that Jackson 's tone was loud
up to the second floor. Kinner asked Jackson why she had
refused Mullen's directive to fold clothes, to which Jackson
replied she was doing it, arguing that folding clothes was the
job of the 11-to-7 shift and that this was posted on the
bulletin board.
Kinner then went to her office and called Glaser, telling
her what had happened and asking her for her advice. Glas-
er, alluding to the fact that they had discussed problems
concerning Jackson before, told Kinner that she felt that
they had taken enough and that she thought that she (Kin-
ner) should handle it. Kinner then wrote up the incident,
and called Jackson to her office. Kinner told Jackson that
several things had been written up previously, that this was
the fourth one, and that she felt that it was sufficient to
terminate her employment at Summit. Kinner showed Jack-
son an employee disciplinary report form that she had pre-
pared, disclosing the nature of the current incident and
indicating that, because this was the fourth incident, Jack-
son was discharged. Kinner asked Jackson to sign the re-
port, which request she refused. Some discussion was then
had with reference to one or two other prior incidents, with
Jackson becoming quite loud and argumentative. At this
point Kinner interrupted, indicated that she felt that they
had discussed enough, and asked Jackson to leave.
Analysis and Conclusions
With respect to the November 26 incident, the General
Counsel asserts that the conduct of Glaser and Robbins on
the company drive constitutes unlawful surveillance within
the proscription of Section 8(a)(1) of the Act. But for two
factors, a long line of cases would tend to support the Gen-
eral Counsel's position here. Thus, absent unusual circum-
stances , the photographing or pretending to photograph
organizational activities, including the distribution of union
literature by union representatives to employees, has been
held to be surveillance and violative of the Act' Similarily,
the taking of photographs of peaceful picket line activity is
violative of Section 8(a)(1) 8
The Board, however, does look to the alleged motive of
an employer in taking photographs, frequently finding that
the asserted motive was not the true motive .9 On the other
hand, in those instances where unlawful conduct is involved
and the facts appear to support the employer' s asserted
valid motive for photographing the activity, the Board will
not find a violation. Thus, the taking of pictures of picket
line violence is not violative of the Act where the employer's
purpose is to secure evidence to be used in injunction pro-
ceedings.1°
In the case before us, the evidence reveals that the admin-
r Lock Joint Pipe Company, 141 NLRB 943, Northland Industrial Plastics
Co. 159 NLRB 792
8 Radio Industries Inc., 101 NLRB 912
9 To convince the police that the distribution of handbills was causing
congestion at an employer's entrance thereby producing a fire hazard, The
May Department Stores Company, 59 NLRB 976 ; to learn the identity of
union organizers "with whom the employer would have to deal," Tennessee
Packers Inc, 124 NLRB 1117; to show that handbill distribution was creating
a dangerous condition at a railroad crossing, General Engineering, Inc and
Harvey Aluminum (Incorporated), 131 NLRB 901.
10 Stark Ceramics Inc, 155 NLRB 1258, Hilton Mobile Homes, 155 NLRB
873
SUMMIT NURSING & CONVALESCENT HOME 73
istrator of the home had had enough of union organizers on
the Employer 's premises . Glaser credibly testified that over
a period of time union organizers from three different
unions had at one time or another been "inside the building,
in the patients ' rooms, in the corridors , on the parking lot
right outside my office-throughout the building ," and that
on three different occasions she had found it necessary to
call the Cincinnati police department . I am convinced,
based upon her manner of testifying as to this incident, that
when she learned that two more organizers were again on
the property Glaser really wanted to take some action to
have them removed . Thus, she called the attorney to seek
advice , which advice she attempted to follow by having
Robbins get her camera for the purpose of getting proof that
union organizers were trespassing , to be used in securing
injunctive relief . The two organizers were in fact trespass-
ing, at one point very close to a posted "No trespassing"
sign , and were illegally on the Respondent 's property.
Supporting the finding of a legitimate purpose is the fact
that Glaser and Robbins made no attempt to observe or to
take pictures of employees , that there was but one attempt
from some distance to photograph the two organizers, and
that, upon realizing that there was no film in the camera,
both Glaser and Robbins left immediately . Unlike the situa-
tion in Russell Sportswear Corporation, 197 NLRB 1116,
here we do not have repeated photography, which appear-
ances were "reasonably calculated to coerce and restrain
striking employees ....
In view of the fact that the two union people were unlaw-
fully on the company premises , coupled with my finding
that Glaser had a legitimate purpose in following the advice
of counsel in attempting to take a picture of the trespass-
ers, I find that the Respondent's conduct on November 26
is not violative of Section 8(a)(1). Hilton Mobile Homes,
supra.
Turning to the December 2 incident involving Leon Con-
stam , the General Counsel alleges this to be surveillance and
thus violative of Section 8(a)(1). I view this to be little more
than an impulsive outburst of feelings that lasted but mo-
ments and was over . Certainly it is not surveillance , not even
"open" surveillance . Inasmuch as no employees were pre-
sent to witness the temper directive of Constant , plus the
fact that he left the entrance almost immediately , driving
directly to his office , I find without merit the General
Counsel's position in this regard and hold that such conduct
does not constitute a violation of the Act. Based upon the
above findings , I shall recommend that the complaint in
Case 9-CA-6637 be dismissed in its entirety.
The complaint in Case 9 -CA-6871 alleges as violative of
Section 8 (a)(3) and (4) of the Act that Jackson was unlaw-
fully discharged on March 8 "because of her activities on
behalf of the Union and/or because she gave and was about
to give testimony under the Act."
In this connection , Jackson received a union card through
the mail around the middle of November which she signed
and mailed back to the Union. Jackson testified that the
only personal contacts she ever had with a union representa-
ii The fact that the incident occurred 12 days before a scheduled election
does not, under the circumstances, compel a different finding as to purpose,
as asserted by the General Counsel
tive was when she accepted a piece of union literature from
Capalbo on the drive on November 26. She also testified
that she never engaged in any union activity on the prem-
ises, or talked with anyone in a supervisory capacity about
union activities. Based upon these facts, at the conclusion
of the General Counsel's case, I granted the Respondent's
motion to dismiss the 8(a)(3) allegation of the complaint.12
With respect to the 8(a)(4) allegation of the complaint, the
General Counsel relies upon the stipulated fact that on Jan-
uary 15 Jackson gave an affidavit to a Board agent and,
subsequently, on March 4, she was served with a subpena
to appear at a Board hearing then scheduled for March 13,
involving the surveillance allegations herein treated. Such
reliance is not well founded, for the record contains not one
scintilla of evidence that the Respondent knew or should
have known that Jackson had signed an affidavit or had
been subpenaed to appear at the Board hearing. Jackson
testified that she never mentioned to anyone in a superviso-
ry capacity that she had given the statement. She further
testified that she did not request time off for work in order
to give the statement, and that she had spoken to no one
about being called to testify in the proceeding or needing
time off to testify.
The only possible basis upon which to find merit in the
Respondent's position is to infer from the facts that Jack-
son, on November 26, was the one employee seen to accept
union literature, that the Company knew that Jackson was
the employee in the automobile, and that, when the com-
plaint issued alleging November 26 surveillance, the Board
must have interviewed Jackson, procured an affidavit, and
subsequently issued her a subpena. Apart from the fact that
the credible evidence indicates that the Company was not
aware of the identity of the person in the car, which in itself
undermines the General Counsel's premise, the drawing of
such an inference, I find, is untenable.
Accordingly, I find that the General Counsel has failed
to make out a prima facie case, much less proven by a
preponderance of the credible evidence that, in terminating
Dorothy Jackson on March 8, 1972, Respondent did so for
reasons violative of Section 8(a)(4) of the Act. Under these
circumstances, I deem it unnecessary to treat evidence con-
cerning other incidents and prior warnings involving Jack-
son illicited by the Respondent in defense of the complaint
and in support of its assertion that Jackson was discharged
for cause.'
Upon the basis of the foregoing findings of fact and con-
clusions of law, I make the following:
CONCLUSIONS OF LAW
1. Summit Nursing and Convalescent Home, Inc., is en-
12 In this regard, there is no evidence that Glaser or Robbins knew that
Jackson was the person to whom the organizers were talking on November
26, both Glaser and Robbins testifying that they did not know whose car was
in the drive Further, the record also reveals that at one time or another
during this period union literature had been passed out to virtually every
em?loyee at Summit Nursing Home
i At the conclusion of the Resporident's case, the Respondent moved to
dismiss both complaints for want of evidence, ruling upon which I reserved
for this Decision In accordance with my findings herein, and consistent with
my ruling at the hearing dismissing the 8(a)(3) portion of the complaint in
Case 9-CA-6871, I hereby grant the motion
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. National Union of Hospital and Nursing Home em-
ployees, Local 1199H , an affiliate of Retail , Wholesale , De- missed in their entirety.
partment Store Union , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor
practices as alleged in the complaints.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 14
It is recommended that the complaints herein be dis-
14 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 be deemed
waived for all purposes.