Sylvan Manor Health Care Center

National Labor Relations Board - Board Decisions

Apr 27, 1984

270 N.L.R.B. 72 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morton Rosen, Selma Rosen and Sanford Rosen t/a
Sylvan Manor Health Care Center and Service
Employees International Union, Local 82. Case
5-CA-13274
27 April 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 23 December 1983 Administrative Law
Judge Sidney J. Barban issued the attached supple-
mental decision. The Respondent filed exceptions
and a supporting brief, and the General Counsel
filed a brief in answer to the Respondent's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings,1 and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Morton
Rosen, Selma Rosen and Sanford Rosen t/a Sylvan
Manor Health Care Center, Silver Spring, Mary-
land, its officers, agents, successors, and assigns,
shall pay Jacquelyn Davis the sum set forth in the
Order.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings. Nor do we find, after a full review of the record and the
judge's decision, any evidence to support the Respondent's claim that the
judge's findings were the result of bias and prejudice.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge. This
matter was heard at Washington, D.C., on August 3 and
5, 1983, on a backpay specification dated May 9, 1983,
issued pursuant to an order of the National Labor Rela-
tions Board directing the above-named Respondent to,
inter alia, make Jacquelyn Davis (herein Davis) whole
for any loss of earnings she may have suffered because of
the discrimination against her, plus interest. 264 NLRB
1342 (1982). Respondent's answer raises issues set forth
hereinafter.
On the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by Respondent and the General
Counsel,' I make the following
FINDINGS AND CONCLUSIONS
I. THE ISSUES
Both Respondent and the General Counsel agree that
the backpay period in this matter begins on April 1,
1981. (All dates herein are in 1981, unless otherwise
noted.) The parties disagree as to when the backpay
period ended. The General Counsel contends that the
backpay period ended on February 11, 1983, when Re-
spondent offered Davis reinstatement. However, Re-
spondent contends that period did not extend beyond
September 16, 1981, when Respondent asserts Davis was
fired by an interim employer for alleged "gross miscon-
duct," tolling backpay at that point.
Respondent further argues that backpay should be
tolled as of the date of Davis' discharge by the interim
employer, "if not before," because of an alleged failure
by the General Counsel and by Davis "to obtain or
present evidence of interim earnings" asserting that the
General Counsel is seeking to "escape his obligations" in
this regard by *seeking simply shift the burden of proof
of Respondent." (Br. 11-12.) The General Counsel
argues that the burden of proof as to interim earnings by
law falls upon Respondent.
The major issue litigated concerns Respondent's claim
that Davis was discharged by an interim employer for
conduct justifying tolling backpay at that point. The
General Counsel contends that not only was the dis-
charge unjustified, but, in fact, was the result of Davis'
involvement with the Union.
II. DAVIS' EMPLOYMENT DURING THE BACKPAY
PERIOD
Davis was discharged by Respondent from her job as
a nurses assistant on April 1. She credibly testified and I
find that she thereupon sought employment at other
nursing homes and hospitals in and around Washington,
D.C., until she obtained employment at the Hebrew
Home of Greater Washington (herein the Hebrew Home
or the Home), on April 25, first on a part-time basis and
then full time. Davis continued to work for the Hebrew
Home until she was discharged on September 16, as dis-
cussed hereinafter. Davis then sought work at a large
number of places in the area, most of them hospitals and
nursing homes, which she named at the hearing. I credit
her testimony. 2 Davis was employed on a temporary
I The General Counsel has filed a motion to strike certain arguments
in Respondent's brief and Respondent has filed an opposition thereto. I
will consider the points made at appropriate places herein.
2 Respondent does not controvert Davis' testimony as to her attempts
to find employment, except that Selma Rosen, one of the owners of Re-
spondent (herein Rosen), asserts that as a general situation the nursing
homes in the area were generally in need of nursing assistants, on the
Continued
270 NLRB No. 23
72
SYLVAN MANOR HEALTH CARE CENTER
basis by the Hospital for Sick Children, on December 7,
and continued at that job until April 6, 1982, when her
temporary appointment ran out. After her termination by
the Hospital for Sick Children, Davis again sought em-
ployment from a large number of places, including a
number which were not involved with nursing care.
These were also named in the record. The only work
which she secured was for 3 days from the Union. Davis
testified that about a month and a half or 2 months after
she lost her job at the Childrens Home, she "began get-
ting discouraged and slowed down my search for work,"
but she states that she "didn't stop looking, I never
stopped looking for employment. I didn't go out as much
as I had gone out. But I would get the yellow pages and
I would call from the yellow pages, and on Sundays I
would get the paper and I would call. But I slowed
down my search for work as far as going out." The
record shows that previously Davis had driven to vari-
ous places named, in her car, seeking work.
Respondent also asserts that Davis "admitted . . . to
refusing to look in the suburban Virginia area, where
there were jobs advertised." (Br. 13.) However, the
actual testimony was somewhat different. s I cannot find
on this record that Davis refused to seek jobs in Virginia
during the periods with which we are concerned.
111. DAVIS' EMPLOYMENT AT THE HEBREW HOME
As noted, Davis was employed on a part-time basis by
the Hebrew Home on April 25, 1981. She was thereafter
employed by the Home on a full-time basis until she was
terminated on September 16, 1982. While employed at
the Hebrew Home, Davis was considered a good em-
ployee. Indeed, DeVault, on Davis' separation form,
rated her "good" on the four categories of "Attend-
ance," "Efficiency," "Attitude," and "Competency." In
July 1981, Davis' immediate supervisor, in recommend-
ing that she be given permanent status, stated that Davis
"has been performing her duties efficiently as a nurses as-
sistant. She is caring toward the residents [as the Home
referred to patients] and has a good rapport with her
fellow employees."
Shortly before September 16, Rosen, who is, as noted,
one of the owners of Respondent, called Samuel Roberts,
executive director of the Hebrew Home, on the tele-
basis of her understanding from her contacts with other establishments,
not specified as to time. Virginia DeVarult, associate director of nursing at
the Hebrew Home (herein DeVault sometimes erroneously spelled
DuVall in the transcript), a witness for Respondent, also indicated diffi-
culty in securing nursing asitants because of the location of the Home,
and said she "assumed" other homes were in need of nurses assistants. In
addition, she referred to newspaper ads for nurses assistants, but none
was produced. She did not specify the time periods referred to.
Davis' testimony was as follows:
Q. (Mr. Davison) Ms. Davis . . are you telling us now that there
simply weren't any nursing assistant jobs for 3.35 an hour or more
within an area of, say four or five miles from your home? There just
weren't any?
A. No.
Q. Nothing at all?
A. The only listing for nursing assistants were-was in Virginia.
The Hebrew Home had a listing for nursing assistant. It was in Vir-
ginia.
In fact, the Hebrew Home was in suburban Maryland, no less difficult of
access than suburban Virginia.
phone and, after chiding him on the Home's hiring a
number of employees who had left Respondent's employ,
said, according to Roberts, that "we were employing a
former employee of hers, and that the employee was a
marginal employee, and we had made a choice, and we
may have difficulty with her." Roberts states that Rosen
named the employee as Jacquelyn Davis.4 Both Roberts
and Rosen state that Rosen did not refer to Davis' in-
volvement with the Union. However, Rosen's testimony
at another place makes clear that because of the frequent
interchange of employees among the nursing homes, the
nursing homes were aware of what was going on at the
other homes. I have no doubt in the circumstances and
find that the supervisors at the Hebrew Home became
quickly aware of Davis' union involvement at Respond-
ent's establishment. Roberts states that he advised the di-
rector of nurses at the Hebrew Home, May Siegel, of the
call from Rosen; he states that he would have felt "dere-
lict" if he had not done so. DeVault, who was an assi-
sant to Siegel, testified that she had been made aware
that Davis had previously worked for Respondent, but
could not recall from whom she had learned this. She
denied learning about Davis from Rosen, or that Rosen
had called her in the period immediately before she dis-
charged Davis. Inasmuch as the purpose of Robert's ad-
vising Siegel of Rosen's call was to alert the Home's su-
pervisors of a possible personnel problem, I find it more
than likely, and infer that Siegel informed her assistant,
DeVault, of the message passed on by Roberts on this
occasion.
Davis testified that a week before she was discharged,
DeVault spoke to her and several other nurses aides,
some of them previous employees of Respondent, while
they were at the nurses station, stating "that Mrs. Rosen
from [Respondent] had called her and asked her why she
had hired all of her employees. Mrs. DeVault turned to
me and said, 'Especially you.' Mrs. Rosen asked why did
she hire that bad girl. Mrs. DeVault stated that 'Jackie,
were you really trying to get a union?' I said yes."
DeVault denied having any conversation with Rosen
about Davis before on or about April 5, 1982.5 DeVault
specifically denied the conversation asserted by Davis, or
that in early September 1981 she had a conversation with
Davis and other nurses aides about a telephone call she
allegedly received from Rosen.
Respondent argues that, in resolving this credibility
conflict, the General Counsel's "failure to present testi-
mony from any of [the three employees still employed at
the Hebrew Home who Davis identified as present at
this conversation], or to explain his failure to do so, war-
rants the inference that their testimony would not have
supported Davis." (Br. 9.) That statement is followed by
an attack on the General Counsel for failing to call these
employees as witnesses, which is the subject of the Gen-
4 Rosen says she only referred to the employee as "Jackie," which I
find quite improbable. Rosen testified that she told Roberts that she knew
that the Home had hired other employees from Respondent, "but you
might have one who is trouble," referring to Davis.
' It appears that Davis, at the unfair labor practice hearing, testified
concerning the conversation with DeVault set forth above. Rosen, it
seems, called DeVault to obtain her version of the facts involved.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel's motion to strike. Though I disagree with a
number of the things asserted by Respondent in support
of his argument, I see no reason to strike the argument.
However, I do not believe that the circumstances in this
case warrant an inference that the witnesses not called
would necessarily fail to support Davis. The witnesses
were equally available to Respondent, who also did not
call them. Though Respondent argues that it was un-
aware of the missing witnesses before the hearing in this
instance (a matter which the General Counsel disputes,
with some basis), the record shows that Respondent was
given a recess at the end of the case to locate one miss-
ing witness employed by the Hebrew Home. I fail to see
why Respondent could not have brought the others, if
they supported DeVault's position. An inference is not
justified merely because the General Counsel and Re-
spondent did not present corroborative evidence. See
McCormick, Evidence § 272 (2d ed. 1972). 8
I have no doubt that a conversation occurred to the
effect testified by Davis, though it is probable that De-
Vault referred to a call which Rosen had made to the
Hebrew Home which was critical of Davis rather than
to a call made directly to DeVault. As the record shows,
such a call did occur and undoubtedly was passed on to
DeVault as has been found. It has also inferred and
found as stated above, the supervision at the Home was
aware of Davis' involvement with the Union, which is
confirmed in DeVault's question of Davis.
Testimony concerning the incident which led to
Davis' discharge a week later was adduced through
Alvina Jason, now employed in the accounting depart-
ment of the Home, but who was at the time a secretary
in the social services department of the Hebrew Home.
At the hearing my impression was that Jason's recollec-
tion of the circumstances was something less than clear
and not completely reliable. This is confirmed in the
record as indicated in some instances hereinafter.
On Monday, September 14, about noon, Jason was sit-
ting with a patient, a Ms. Price, in a room at the Home,
when she says that she heard a noise or "commotion" in
the hallway. At the time the hall area was very busy
with patients going to or being assisted to the dining
room. Jason was sitting at the window of the patient's
room, near Price, who was asleep. There was apparently
another bed in the room which must have been closer to
the door inasmuch as Price's bed was by the window. ?
Jason asserts that as she was looking at the doorway,
which was wide enough to accommodate a wheelchair,
she saw a nurses aide (whom she later identified as
Davis) push a patient, who Jason says was walking
feebly. Jason says that she cannot recall whether the pa-
tient was using a cane or a walker, asserting the incident
e There are many reasons why witnesses are not, and should not be,
called. I recall an instance in which a witness not called by either side
was put on the stand at my insistence to resolve a difficult credibility
conflict. The missing witness concluded by saying that though he was
there at the time, he did not recall the incident sufficiently to be of any
assistance.
7 Jason originally testified that she was not sure whether there was an-
other bed in the room-though she thought so-but denied that there
was anyone but Ms. Price in the room. Later she stated that she was not
sure whether a second person was in the room, "or whether the bed was
empty."
occurred 2 years ago. She says that what she saw
through the doorway angered her and she came out into
the hall, where she states that she saw Davis push the
patient again.8 About this time she says she heard Davis
say "something like" (Jason is not sure because of the
passage of time) "I'm not going to do this every day."
Jason says that Davis was very angry though no basis
for such a conclusion was given. Later she said that
Davis was shouting at the patient.9 Jason states that she
approached Davis, ascertaining her name from a name
tag suspended around her neck, and asked Davis if she
could help Davis. The latter replied, "No, I'm just taking
her into the dining room." Though Jason asserts that she
was concerned that the patient might have been hurt,'0
she made no effort to secure the patient's name, or
secure the assistance of a floor nurse. Jason says that she
decided that the incident was "none of my business." She
thereupon returned to Price's room. After remaining
there about an hour and a half, she did some typing and
other work in the social services department. It was at
this point she says she decided to report the incident she
had observed to DeVault. Two days later, on September
16, at the request of DeVault and the administrator of the
Home, Jason submitted a written report stating:
On Monday, September 14, 1981, while volunteer-
ing on the 2nd floor of the Smith-Kogod Building, I
witnessed a nursing aide, Jacquelyn Davis, push a
Resident down the corridor toward the activity
center. When the Resident did not move as fast as
she would have liked her to, she placed both her
hands on the Resident's back and pushed her again,
shouting, "Come on and get in here, I'm not going
to do this every day."
Later that day, DeVault had Jason repeat her charges
to Davis in DeVault's office. Davis vigorously denied
the accusations. DeVault, asserting that she was satisfied
that the patient had not been hurt, made no further in-
vestigation.
When asked how seriously she took such allegations of
patient abuse, DeVault replied, "It's strictly terminate."
However, the evidence shows that in the case of two
nurses aides fired on July 24 for verbal and physical
abuse of a patient, these two were fired only after a
second offense.12 At the close of the interview with
' When initially describing this incident on direct examination, Jason
used the word "push" and sometimes also "shove." Early in her cross-
examination, however, she strongly denied that she said "push," insisting
that she had only used the word "shove." Thereafter, in her testimony
she described the action as "push."
I I note that the first time Jason described the incident, Jason asserted
that Davis "said something like 'I'm not going to do this every day."'
(Emphasis added.) It does not appear that Davis was involved in the
commotion that Jason first heard in the hallway.
10 Jason so testified at first, but later she denied that she had so testi-
fied.
I Davis, while admitting the confrontation, denies that Jason was the
person brought into DeVault's office to accuse her on this occasion.
'2 It appears from the exhibits in the record that these two were fired
for stuffing a washcloth in the mouth of a patient who insisted that she
be taken to the bathroom. At least one other nursing aide asked to be
transferred so that she would not have to work with these two. No other
example of discharge for patient abuse appears in the record.
74
SYLVAN MANOR HEALTH CARE CENTER
Davis in her office, DeVault discharged Davis. She says
that she advised Davis that Davis could have a griev-
ance hearing the next morning, but that Davis did not
come for the hearing. Davis denies that she was advised
of her right to such a hearing.
Notwithstanding my considerable doubts as to Jason's
reliability as a witness, I am convinced that she saw
Davis put her hands on the back of an elderly patient
whom she was assisting to the dining room. Though
Jason emphasizes that Davis "pushed" or "shoved" the
patient, I also have no doubt that she is overstating and
coloring the situation. She describes the patient as elder-
ly and senile (at some points she does not seem so sure
that she was senile) and shuffling down the hall. Any
considerable pressure on the back of such a patient
would undoubtedly cause this patient to stumble or fall.
There is no evidence of this, however. Indeed, Jason was
so sure the patient did not fall and was not injured she
did not seek assistance from a floor nurse, or attempt to
ascertain the patient's identity. Nor did she attempt to
bring the incident to anyone's attention until a consider-
able time later, when she says she began to have second
thoughts about it. I cannot find on this record that Davis
was abusing a patient on this occasion. Nor do I think
that Respondent's claim to the contrary is strenghtened
by Jason's assertion that Davis "shouted" at the patient. I
note that, when she first described the incident, Jason
testified that Davis "said something like 'I'm not going to
do this every day."' (Emphasis added.) 13
DeVault's decision to terminate Davis in these circum-
stances raises some questions. Davis had previously been
a very good employee with whom the Home had no
problems. Her immediate supervisor described Davis as
caring toward the [patients]." DeVault was convinced
that the patient had not been harmed during this inci-
dent. And nothwithstanding her determination not to
permit abuse of the patients-with which I heartily
agree-it appears that in the past not all allegations of
patient abuse have been considered grounds for immedi-
ate discharge. Nevertheless, I do not find, as General
Counsel urges, that Davis was discharged on this occa-
sion because of her previous involvement with the
Union.
Conclusions
Respondent argues that "a backpay recipient, such as
Jacquelyn Davis, forfeits backpay when she voluntarily
quits a job or is terminated for gross misconduct" (Br. 5).
"3 Jason's tendency to color her account with her own personal input
is illustrated in her memo of September 16, in her statement that Davis
pushed the patient "when the patient did not move as fast as she would
have liked her to"-an obvious personal comment and conclusion of
Jason.
There are, indeed, a number of cases which hold that
when an employee entitled to backpay quits interim em-
ployment willfully or without cause, the employee
should be considered to have incurred a wilful loss of
pay. See, e.g., Medline Industries, 261 NLRB 1329 (1982),
cited by Respondent. Likewise, in a number of cases in
which an employee entitled to backpay has been dis-
charged by an interim employer, the Board has also con-
sidered whether the employee has engaged in conduct
which amounted to a willful loss of pay. However, no
case has been cited in which an employee's backpay has
been diminished because of such discharge and I am
aware of none. See Kansas Refined Helium Co., 252
NLRB 1156 (1980), and cases cited at 1162; Gary Aircraft
Corp., 211 NLRB 554 (1974); Fort Lock Corp., 233
NLRB 78 (1977), holding in various circumstances that
though the employee involved was discharged by an in-
terim employer the employee's conduct did not consti-
tute willful loss of pay.
"While the General Counsel has the burden of proof
to establish gross backpay," the respondent has the
burden of proof to show diminution of that amount,
whether such diminution results from the willful loss of
earnings by the failure to either look for or keep a sub-
stantially equivalent job .... " Fort Lock Corp., supra at
80; Kansas Refined Helium Co., supra. I find that it has
not been shown in this case that Davis engaged in such
willful or gross misconduct as to constitute a willful loss
of earnings within the Board's precedents.
Recommendations
Respondent does not deny the gross backpay figures
set forth in the specification. Though Respondent denies
Davis' interim earnings conceded by the General Coun-
sel in the specification, Respondent has not submitted
any different figures, or, as has been found, any other
reason to diminish the backpay to which Davis is enti-
tled. According to my calculations from the specifica-
tion, the net backpay due Davis is S8,206.20. In his brief
the General Counsel, without any explanation therefor,
asserts that Davis is due $9,985.26.
On the basis of these findings of fact and conclusions
of law and on the entire record in this case, I issue the
following recommended
ORDER
Morton Rosen, Selma Rosen and Sanford Rosen t/a
Sylvan Manor Health Care Center, Respondent herein,
its officers, agents, successors, and assigns, shall pay to
Jacquelyn Davis $8,206.20 with interest thereon as set
forth in Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis Plumbing Co., 138 NLRB 716 (1962).
75