Town And Country Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 74 (N.L.R.B. 1988)

74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Town and Country Nursing Home, Inc and United
Steelworkers of America , AFL-CIO-CLC, and
its Local 13594 Case 7-CA-26246
September 30 1988
DECISION AND ORDER
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 6 1987 Administrative Law Judge
Bernard Ries issued the attached decision The Re
spondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings and
conclusions' and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Town and
Country Nursing Home Inc Midland, Michigan
its officers agents successors and assigns shall
take the action set forth in the Order except that
the attached notice is substituted for that of the ad
ministrative law judge
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discharge employees because of
lawful activities on behalf of United Steelworkers
of America AFL-CIO-CLC and its Local 13594
or any other labor organization
WE WILL NOT in any like or related manner
interfere with restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL make Karen Rosenbrock whole for
any loss of pay she may have suffered because we
terminated her with interest and WE WILL
remove from our personnel files any reference to
her August 13 1986 discharge and notify her of
this action and of our intention not to rely on such
discharge in future personnel actions
TOWN AND COUNTRY NURSING
HOME INC
Richard F Czubaj Esq for the General Counsel
Mary W Kole Esq and Michael J Kole Esq of Mid
land Michigan for the Respondent
William R Wittbrodt of Bay City Michigan for the
Union
DECISION
STATEMENT OF THE CASE
i The judge found that sinking employee Rosenbrock s carrying
though not brandishing a rubber mallet near the driveway where sinkers
were stopping automobiles would reasonably tend to have an intimidating
effect on nonstrikers and therefore was unprotected under Clear Pine
Mouldings 268 NLRB 1044 (1984) We find it unnecessary to pass on this
finding because even assuming Rosenbrock engaged in the alleged mis
conduct we agree with the judge for the reasons stated by him that the
Respondent violated Sec 8(a)(3) and (1) of the Act by discharging her on
August 13 1986 Thus although the Respondent established an honest
belief that Rosenbrock engaged in two specific acts of alleged miscon
duct in early June (including the mallet incident) the Respondents coad
ministrator Kole testified that Rosenbrock would not have been dis
charged but for subsequent reports of continuing improper picketing
The Respondent however has not explained these subsequent reports
and has not established that the alleged improper picketing was unpro
tected or that it had an honest belief that Rosenbrock was involved in
such picketing We therefore agree with the judge that the discharge of
Rosenbrock was unlawful Similarly we adopt the judge s recommends
tion that the Respondent be ordered to make Rosenbrock whole for loss
of earnings from the date of her discharge to the date she was offered
reinstatement In this regard we note that the Respondent did not view
the two prior incidents of alleged misconduct specifically attributed to
Rosenbrock as sufficient to warrent discharge
BERNARD RIES Administrative Law Judge This
matter i was tried in Midland Michigan on 2 June 1987
i The original charge filed in this case on 26 June 1986 was Case 7-
CA-25972 alleging violations of Sec 8(a)(1) (3) and (5) Subsequently
on 21 August 1986 the Union filed an amended charge in Case 7-CA-
25972 alleging violations of the same sections and a complaint issued on
26 August 1986 Thereafter the Union filed a second charge (Case 7-
CA-26246) again alleging violations of Sec 8 (a)(1) (3) and (5) includ
mg an assertion of discrimination against employee Karen Rosenbrock
The outstanding complaint in Case 7-CA-25972 was on 19 November
1986 consolidated by the Region with issues found meritorious in the
second charge
The Respondent then filed charges against the Union in four cases that
contained allegations that were deemed by the Region to have merit and
were consolidated with the outstanding CA complaint on 27 January
1987 and 27 March 1987 Pending settlement of the four CB cases on 28
May 1987 the Regional Director severed those cases from the consoli
dated complaint and postponed them indefinitely Thereafter a complete
settlement of Case 7-CA-25972 and a partial settlement (including eight
striker misconduct issues) of Case 7-CA-26246 were consummated leav
mg as the only viable issue the alleged discrimination against Karen Ro
senbrock as claimed in Case 7-CA-26246
Continued
291 NLRB No 10
TOWN & COUNTRY NURSING HOME 75
The sole issue presented is the legality of the discharge
of striker Karen Rosenbrock on 13 August 1986 2
Briefs have been received from the General Counsel
and the Respondent Having considered the transcript
the exhibits the briefs and my recollection of the de
meanor of the witnesses I make the following
FINDINGS OF FACT s
I MATERIAL BACKGROUND
Respondent operates a nursing home in Midland
Michigan In the course of bargaining for a new collec
tive agreement the Union went on strike early in the
morning of 7 June 1986 at the time of the hearing the
strike was still in progress
Mary Kole is vice president of the corporation and
co administrator of the Home she is also an attorney
who served as Respondents principal lawyer (and wit
ness) in this proceeding Mary s son Michael has served
as the nego iator of the contract he is also an attorney
who conducted the examination of his mother when she
appeared as a witness in the case
The parties stipulated that the strike which began on 7
June was in law and fact an unfair labor practice strike
The original answer to the complaint admitted that on or
about 12 June Mary Kole discharged an employee asser
tedly because she caused in excess of $500 damage to an
automobile that on or about 13 June Kole discharged a
striking employee for repeatedly threatening to kill the
family members of a nonstriker and that about mid June
Kole fired a striking employee for causing damage in
excess of $500 to a company vehicle Respondent also
admitted in another answer that it discharged for miscon
duct one employee on or about 16 July and five more on
or about 13 and 15 August but did not specify the rea
sons
II THE DISCHARGE OF KAREN ROSENBROCK
On 13 August while still on strike nurse s aide Karen
Rosenbrock received the following telegram from Mary
Kole
We completed our investigation of your conduct
and actions on the picket line On June 7 1986 you
struck a car dnvin [sic] by Michael Sullivan Said
car was damaged This together with other acts of
misconduct is not peaceful picketing Because of
your actions as stated above your employment with
Town and Country Nursing Home Inc is tenni
nated effective immediately
A The Applicable Law
In Clear Pine Mouldings 268 NLRB 1044 1046 (1978)
the Board held following NLRB v W C McQuaide
552 F 2d 519 527 (3d Cir 1977) that the appropriate test
for determining whether an employer may refuse to rein
Accordingly I deem all the settled cases to be severed from the com
plaint except the single issue so remaining under Case 7-CA-26246 and I
have amended the caption accordingly
2 As amended at the hearing All subsequent dates refer to 1986
3 Errors in the transcript have been noted and corrected
state a striker who engages in misconduct is as follows
[W]hether the misconduct is such that under the cir
cumstances existing it may reasonably tend to coerce or
intimidate employees in the exercise of rights protected
under the Act 4
Respondent here has advanced acts of misconduct by
Rosenbrock which it asserts justified her discharge
those most litigated are that on 7 June she struck the
automobile of a nonstriking employee with a picket sign
causing some damage to the car and that on 8 June she
appeared in the vicinity of the picket line displaying a
sledgehammer in such a manner as to reasonably tend to
coerce nonstriking employees
Although the Board did not refer in Clear Pine to the
procedure to be applied in cases such as this United
States Gypsum 284 NLRB 4 ( 1987) establishes that it in
tends to adhere to the approach long ago evolved in
cases of this nature as expressed in General Telephone
Co 251 NLRB 737 738-739 ( 1980) 5
The law is clear that when an employer disciplines
an employee because he has engaged in an econom
is strike such discipline violates Section 8 (a)(3) and
(1) of the Act An employer may defend its action
by showing that it had an honest belief that the em
ployee disciplined was guilty of strike misconduct
of a serious nature If the employer is able to estab
lash such a defense then the General Counsel must
come forward with evidence that either the em
ployee did not engage in the conduct asserted or
that such conduct was protected The burden then
shifts back to the employer to rebut such evi
dence 10
10 Rubin Brothers Footwear Inc 99 NLRB 610 (1952) Amen
can Cyanamid Company Inc 239 NLRB 440 (1978) See general
ly NLR B v Burnup & Sims, Inc 379 U S 21 (1964)
I The alleged damage to a nonstrikers car
Respondent produced evidence that provided a basis
for an honest belief that Rosenbrock about 1 20 p in
on 7 June struck the automobile of orderly Michael Sul
livan with a picket sign and inflicted some minor
damage Kole testified that Sullivan so reported to her
to the best of her memory however Sullivan who had
only been working at the Home for about 2 weeks was
unable to name the striker who had committed the act
and he was forced to point her out to one of the supervi
sors who then identified her as Rosenbrock
In notes that she was keeping contemporaneously
Kole wrote Karen hit Margaret Sullivans car on
4 In so holding a principal intention of the Board was to overrule ear
her cases which had held that mere verbal threats by strikers not ac
companied by any physical acts or gestures that would provide added
emphasis to the words did not constitute disqualifying conduct Clear
Pine supra at 1045 and fn 8
S In view of this approach perhaps a more precise statement of the
Clear Pine holding is Whether the employer had an honest belief that
the discharged employee had engaged in strike related conduct which
would reasonably tend to coerce or intimidate employees in the exercise
of rights protected under the Act and General Counsel has not shown
that belief to be erroneous
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6/7/86 6 Kole credibly testified that because Michael
Sullivan had been employed for such a brief time she in
quired around about his trustworthiness and was satis
fled with the responses As with other employees who
had assertedly been the object of misconduct Kole had
Sullivan make an affidavit (used in support of a com
plaint for an injunction) on 9 June which confirmed that
on 7 June as he drove into the east driveway of the
Home Rosenbrock struck the rear window and tailgate
of his [1976 Chevrolet] Vega with a picket sign using
both the sign portion and wooden pole portion of the
sign causing a scratch through the paint on the tailgate
of his vehicle '
The foregoing evidence (I will discuss the testimony
of Pamela Ockerman hereafter) furnished sufficient
grounds for concluding that Respondent harbored an
honest belief' that Rosenbrock had willfully damaged
Sullivan s automobile on 7 June
General Telephone supra dictates that at this point the
burden shifts to the General Counsel to come forward
with evidence that either the employee did not engage in
the conduct asserted or that such conduct was protect
ed To satisfy this obligation General Counsel present
ed Rosenbrock who while admitting that she and other
pickets were at that stage of the strike blocking cars in
the driveways said that she did not take the sign [she]
had and scratch any car Rosenbrock seemed to be
quite staunch in her denial and on the face of her testi
mony I found no reason to disbelieve her
Following the scheme of General Telephone Respond
ent undertook the burden which then shifts back to
the employer to rebut such evidence 8 The only ostensi
bly direct evidence presented for this purpose was that
of Business Manager Pamela Ockerman Ockerman gave
the following testimony about the pertinent incident of 7
June which occurred as she sat with a patient in a little
enclosed fenced area about 50 feet9 from the entrance
to the east driveway
Q Directing your attention to the date of June 7
were you familiar with a Michael Sullivan who was
working at the facility?
A Yes I was
6 Margaret Sullivan is the wife of Michael Sullivan she also worked at
the Home
Respondent attempted to offer this affidavit as probative evidence of
the facts recited A representation was made that Respondent had been
unable to subpoena Sullivan or to obtain subpoenas until the Thursday
preceding the hearing because of the Board not being sure what room
they were going to use Immediately on receipt of the subpoenas Sulli
van s was put into the hands of the local sheriffs department which
found that Sullivan had removed his trailer from his last known address
and had left only a post office box as a forwarding address
It was my view that in the case of a witness as important as Sullivan it
was incumbent upon Respondent to move expeditiously to ascertain his
present location so that when a subpoena became available service could
be effected immediately This failure of preparation I held could hardly
serve as a basis for an exception to the general rule that the admission of
such an out of court statement which would deprive The General Coun
sel of his invaluable right to cross -examine Sullivan is improper I did
however receive the document for the limited purpose of establishing
that Respondent held an honest and objective belief that Rosenbrock had
engaged in misconduct at the time she was discharged
8 The ultimate burden of persuasion of innocence of course never
leaves the General Counsel
9 1 derive this figure from a scale map of the nursing home (R Exh 1)
\Q Did you on that date about 1 20 in the after
noon observe anything happening to his automo
bile?
A Yes
Q Could you tell the Court what that was?
A He was coming in the driveway closest to
Rockwell Road which is the east drive and as he
was coming in Karen Rosenbrock hit the rear
window of his car and the back of the car the rear
end of it with a picket sign that had the strike you
know and the Local number on the sign And she
did hit the car and then he proceeded into the
drive to park because he was entering for work
Q Did he come and say anything about this mci
dent?
A Yes he did At that time I went out and
looked at the-there was a small dent and a scratch
in the rear of his car
Ockerman made a good impression on the witness
stand Her seemingly clear testimony was however per
haps irretrievably confused by the subsequent testimony
given by Mary Kole Kole it should be noted acted as
Respondents trial attorney in calling and questioning
Ockerman When Kole later testified however she was
asked whether as part of the Sullivan automobile investi
gation she had spoken with Ockerman and two other
employees regarding the incident She replied Not
regarding the car no Perhaps because the other em
ployees named were involved in the asserted sledgeham
mer act of misconduct rather than the one involving the
Sullivan car and perhaps because Kole had not noticed
Ockerman s name included in the group I assumed in
view of Ockerman s testimony that Kole had misunder
stood the question When I later attempted to clarify my
confusion on the matter however Kole did not help
MR CZUBAi Nothing further
JUDGE RIES You say you didn t talk to Pam
Ockerman about the denting of Mr Sullivan s car?
THE WITNESS I did talk to her about the denting
of the car
JUDGE RIES Oh you did?
THE WITNESS Yes
JUDGE RIES I see
THE WITNESS We talked about everything that
was going on
JUDGE RIES Well and what did she tell you
about it?
THE WITNESS That she observed the damage on
the car and that it was dented and scratched She
was upset about it and told me what had happened
JUDGE RIES Did she tell you-what did she tell
you had happened?
THE WITNESS She said that Mike Sullivan told
her that Karen Rosenbrock had scratched and
dented his car and she went out and looked at it
and it was scratched and dented There were
times-
JUDGE RIES She said that Mike Sullivan told her
that?
THE WITNESS Yes [Emphasis added ]
TOWN & COUNTRY NURSING HOME
Thus Ockerman appeared to be testifying that she had
observed the incident (as quoted above) but Kole the
attorney who not only elicited that testimony from Ock
erman but had also personally participated importantly in
the aftermath rather emphatically indicated that Ocker
man had not personally witnessed the event but had
been informed of its details by Sullivan 10
Given Ockerman s apparent sincerity I can only con
elude that taking into account the obvious hectic
nature of the first few days of the strike as Kole put it
and the fact of testifying nearly 1 year after the event
Ockerman (and Kole) were not sure of what they saw
and what they were told-it has probably become a blur
in both their minds Ockerman s testimony that there was
a small dent and a scratch in the rear of Sullivan s car
does not comport with the statement in Sullivan s affida
vit that the picket sign caus [ed] a scratch on the tail
gate of his vehicle It may well be that Ockerman did
witness a disturbance at the driveway but has at present
blended together in her mind what she actually ob
served and what she eventually found out about Sulli
van s identification of Rosenbrock This is suggested by
the fact that while Ockerman appeared to be saying that
immediately following the incident Sullivan came to
speak to her about it
Q Did he come and say anything about this mci
dent's
A Yes he did At that time I went out and
looked at the-there was a small dent and a scratch
in the rear of his car
Kole testified that Ockerman went out and looked at
the car immediately after [Sullivan ] reported this to
Kole 11
10 Elsewhere in the transcript Kole testified that during the strike If
somebody else observed [an incident] I sometimes would write it out and
document that they observed it but later I asked the people to write it
out for me Respondent offered no contemporaneous note that Ockerman
had reported the Sullivan incident nor did it offer as corroboration of
Ockennan s testimony (or as further evidence of its honest belief in
Rosenbrock s guilt) any affidavit made by Ockerman implicating Rosen
brock in the incident
i Similarly Kole s recollection indicated confusion When she was
first asked on direct examination about the Sullivan incident she spoke of
Sullivan entering the room and saying that his car had been struck This
colloquy followed
Q Did he say by whom?
A Karen Rosenbrock
Q Did he say when?
A When he came in
On cross examination however the sequence of events became less
clear Kole testified that because frequently the person who had the
injury happen wouldn t know what [sic] the person who did it was they
would find some veteran employee point to the suspect on the picket
line and ask for an identification In the case of Sullivan Kole testified
[I]t was either he said Karen Rosenbrock though he-more likely it
happened that he took somebody to ascertain her identity whether he
actually did so or not Kole [did]n t know A few minutes later howev
er Kole reported the conversation rather differently She began with a
quote of a question by her to Sullivan as to how he knew it was Rosen
brook and she quoted his reply as being that he saw her do it According
to Kole she then asked how he knew it was Rosenbrock and she had
him replying that either Dorothy or Janet had told him That s who it
is
77
Considering these deficiencies in the testimony offered
by Respondent I am dubious about the value of Ocker
man s identification of Rosenbrock as a picket sign wield
er who deliberately scratched and/or dented Sullivan s
1979 Vega (which unless Sullivan is an exceptionally
careful and fortunate driver had probably amassed its
fair share of scratches and dents by 1986) Other testimo
ny about relevant circumstances favor Rosenbrock s
denial One was that on 7 and 8 June there were gener
ally police cars parked at both driveways to the Home
at shift change to observe the activities of the picketers
which would likely have served as a deterrent to the
conduct of which Rosenbrock stands accused
A second circumstance is based on Ockerman s de
scription of the scene As Sullivan slowly entered the
driveway there were some pickets still in front of the
car and others (the pickets totalling 5 or 6 in number)
all around it Rosenbrock was standing on the driver s
side another striker was behind her someone else
was standing behind the car and there were a couple
up on the passenger side of the car With pickets in
front of the car as Sullivan was easing in it is difficult to
imagine that he had a real opportunity to concentrate on
who was doing what in the rear of the car Looking
from the front about 50 feet away with picketers in
front of the car Ockerman would seem to have the same
problem of ascertaining who if anyone hit the car
The word hit moreover is not self defining There
was no description either by Ockerman or in Sullivan s
affidavit of what sort of motion was used One can mad
vertently hit a moving vehicle with a picket sign even
as one is stumbling to get out of its way that would not
constitute willful misconduct
I conclude that counsel for the General Counsel has
carried his burden of establishing that Rosenbrock did
not strike and damage Sullivan s automobile
2 The sledgehammer/mallet incident
The discharge telegram earlier quoted makes refer
ence to other acts of misconduct by Rosenbrock At
the hearing it developed that this phrase was intended to
allude to a claim that as Mary Kole characterized it in
her notes for 8 June Karen Rosenbrock stood swinging
what appears to be a sledgehammer in a threatening
way
Again based on not only Kole s own perception of the
incident but also on reports given to her by others I am
inclined to believe that Respondent held an honest
belief that Rosenbrock had engaged in such conduct
Kole testified that on 8 June Maintenance Supervisor
Kenneth Skutt and his wife Gail came to the office Gail
told Kole that a nurse s aide-identified to Kole as Ro
senbrock12-was carrying a sledgehammer on the picket
line When Kole looked she saw Rosenbrock with
what I thought was a sledgehammer When Kole first
saw Rosenbrock she was walking on the lawn between
the two vehicle entrances carrying the hammer and
swinging it back and forth At times Kole said the
12 Kole did not personally know Rosenbrock although she had been in
Respondents employ for over a year
11
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hammer would be swung like the pendulum of a
clock but at other times Rosenbrock would swing it
back and over her head -Kole could not however
recall whether the latter happened when a car was
there She also saw Rosenbrock walk across the driver
entrances with the instrument but was not swinging it
on such occasions
Ockerman testified that she saw Rosenbrock on 8 June
swinging a sledgehammer back and forth at her side as
though she was going to hit something with it She fur
ther testified that she saw Rosenbrock stand at a drive
way and swing the tool and then she d walk across the
drive and then come back sometimes when cars were
present When Rosenbrock occasionally put the
hammer over her shoulder she would do so with two
hands but otherwise she carried it with one On and off
Ockerman thought she probably saw Rosenbrock
holding the hammer for at least a couple of hours on 8
June
Gail Skutt testified that she was with her husband
when he drove into the facility about 12 20 p in She saw
Rosenbrock standing right on the edge of the dnve
way close enough to touch with a hammer swinging
it back and forth about a foot or two each way in an
underhand fashion She also saw Rosenbrock as she
and her husband departed but did not see any tool in her
hand at that time 13
Rosenbrock testified that on 8 June she was carrying
not a sledgehammer but a short handled rubber mallet
(black Craftsman brand about 15 inches long with a
head shaped like that of a sledgehammer) which she was
using to pound into the ground stakes bearing strike
signs She said that because of windy conditions the
signs were being whipped around and while her hus
band went to get some tape to secure the signs to the
posts she did carry the mallet back and forth and she
may have been standing beside the driveway At no
point she testified did she step on the pavement with
mallet in hand because she feared being accused of hit
ting someone s car or doing anything She was aware at
the time of the frequent presence of the police She con
ceded that while waiting for her husband to return with
the tape she may have swung the mallet above her
shoulder but not in a threatening posture Rosenbrock
also conceded that the mallet which is used for bump
ing cars out is strong enough to do some damage
which is why she took care to avoid accusations by
keeping it away from the driveways
The General Counsel also adduced the testimony of
striker Edwin L Coons who recalled that shortly into
the strike although he was not quite sure when 14
Rosenbrock brought to the picket line a rubber mallet
maybe about 12 inches in length which he saw her
use to pound a picket sign into the ground He could re
member only one sign for which she used the mallet and
he also recollected her saying It 11 be dust my luck
somebody will report me swinging the hammer at some
19 The record does not disclose the time at which the Skutts left the
premises
14 On cross Koons said that he believe[d] the signs were placed in
the ground a couple weeks after the strike began
body At that point she thought it would be prudent to
put the mallet in her car which she did Koons said he
had seen Rosenbrock off and on during the day (many
times she was out of his range of vision) but the only
time he saw her with the mallet was when she was
pounding the sign into the ground
First I am inclined to believe that Rosenbrock and
Koons were telling the truth that the tool carried by the
former on 8 June was a rubber mallet not a sledgeham
mer Gail Skutt who had the closest view of it of any
Respondent witness never referred to the tool as a
sledgehammer At first she called it a hammer a big
hammer and later said It could have been a mallet
I in not really for sure Her answer to a question as
to whether the handle was over 2 feet long was I
wouldn t know I don t think so
Ockerman repeatedly called it a sledgehammer (my
husband has one) and guessed a length of three and a
half four feet probably She gave the color as black
however Mary Kole seemed uncertain about the nature
of the instrument she testified that she observed [Ro
senbrock] swinging what I thought was a sledgeham
mer-but today in court I ve heard testified was not
The pattern thereafter was consistent I did observe
myself Karen swinging the-I thought it was a sledge
hammer It looked like a sledgehammer but I don t
know Whatever it was anyhow- swinging what I
thought was a sledgehammer Perhaps what may have
given Kole second thoughts was her own testimony
contrary to Ockerman s that I did not see her take both
hands and swing it over her shoulder I did see her bring
it up over her shoulder but I did not see her taking both
hands and swinging it over her shoulder That recollec
tion of a one handed swing onto the shoulder must have
made clear to Kole the unlikelihood that Rosenbrock
was carrying a tool as heavy as a sledgehammer
There was uncertainty among the witnesses about the
time at which the Union first drove the signs into the
ground but it was probably very soon after the strike
began No witness contends that Rosenbrock was seen
with any sort of tool for more than a few hours on a
single day and I am inclined to believe that it was
indeed a rubber mallet which she brought to the prem
ises for the purpose of pounding signs into the ground 15
Somehow I find it most difficult to conceive that Rosen
brock was strolling around the picket line swinging a
sledgehammer under the watchful eye of the local con
stabulary
Kole testified in response to leading questions that
she saw Rosenbrock cross both driveways with the
mallet 16 in her hand that she saw that every car that
came there was stopped during the time that Rosen
brock was holding the mallet 17 and that Rosenbrock
5 On brief Respondent questions why the mallet was not introduced
into evidence The answer may turn on trial preparation At the tearing
counsel for the General Counsel asked Rosenbrock if she still had the
mallet at home and she said she might be able to find it As noted above
there originally were a total of nine sinker misconduct cases to be litigat
ed until shortly before the hearing was to begin
18 Respondent counsel s word
17 Respondent counsels word
TOWN & COUNTRY NURSING HOME 79
was in close proximity to the stopped cars Ockerman
also testified that Rosenbrock with tool in hand would
walk across the drive and then come back when
cars were present Rosenbrock on the other hand testi
fled thrice with emphasis that at no time did I walk
across the driveway with that rubber mallet She did
volunteer however prior to the testimonial appearance of
Gail Skutt I may have been standing beside [the drive
way] but I was not blocking or right on it Skutt s sub
sequent testimony when called by Respondent at least
partially confirmed Rosenbrock s insistence that she
stayed off to the side
In my judgment Rosenbrock s testimony that she did
not actually step onto driveways carrying the mallet on
7 June should be credited We are left however with
the fact that as Gail Skutt testified and Rosenbrock
nearly conceded she did stand near the cars which were
being blocked holding a rubber mallet which admittedly
did look like a sledgehammer but it didn t have a long
handle and was strong enough to do some damage
Under its present view of the law would the Board con
sider such conduct sufficient to justify the termination of
an employee?
Under Clear Pine supra it would appear that the
Board would find a reasonable tendency to intimidate in
the carrying of a rubber mallet next to a driveway in
which the cars of nonstrikers are being stopped The
opinion signed by Chairman Dotson and former Member
Hunter in Clear Pine expressly states that strikers have
no right to carry or use weapons or other objects of
intimidation (Emphasis added ) The concurring opinion
by former Members Zimmerman and Dennis took no
specific issue with this declaration and referring to the
facts of the case concluded The Act does not extend
its protections to such obviously frightening conduct as
carrying and swinging a weapon using it to inflict
damage and threatening to kill a nonstnker 18
Keco Industries 276 NLRB 1469 (1985) involved inter
alia a striker who was seen by some security guards (but
not by nonstrikers) for a few brief moments with a 22
caliber pistol tucked into his belt The Board held that
the mere fact that the striker carried and displayed a
weapon in the vicinity of the plant entrance used by non
strikers satisfied the criteria laid down in Clear Pine Id
at 1469 19 See also Southwest Forest Industries 273
NLRB 765 (1984)
In the instant case while I find that Rosenbrock did
not bring the mallet to the picket line for the purpose of
frightening nonstrikers she must have realized as she
stood by the driveway with mallet in hand that the tool
(which she conceded could cause damage) would reason
ably have tended to have a certain intimidating effect on
passing employees And while she neither used nor bran
dished the mallet those circumstances were not mean
ingful to the Board in Keco Moreover the fact that this
was a limited occurrence for a brief period on a single
day seemed to be of no consequence in either Keco or
E A
18 Obviously the use of the conjunction was not intended to mean that
all of these circumstances had to obtain in order to constitute sufficient
misconduct
9 Remanded sub nom Lima Y NLRB 819 F 2d 300 (D C Cir 1987)
for further analysis by the Board
Clear Pine See also GSM Inc 284 NLRB 174 (1987)
where a striker disqualified himself for reinstatement
when he slapped the hood of a car as it was leaving the
plant but cf Roto Rooter 283 NLRB 771 (1987) where
the Board emphasize [d] that Myles misconduct was
[not] an isolated outburst Assuming arguendo that the
latter language in Roto Rooter was meant to afford a lib
eral dimension to the strict phrasing of the Clear Pine
standard (an assumption which the later GSM case ap
pears to belie) I would be hard put to classify the
mallet holding as an isolated outburst
The recent precedents thus seem to point the way to a
conclusion that Rosenbrock engaged in punishable mis
conduct when on 8 June she stood near the driveway
holding the mallet
3 The mass blocking
As earlier set out the 13 August telegram to Rosen
brock specifically cited the alleged striking of Sullivan s
car and other acts of misconduct At no time in the
pleadings or at the trial did Respondent catalog what
other acts of misconduct it had relied on in firing Ro
senbrock It was brought out at the hearing through
cross examination of Rosenbrock that the strikers delib
erately obstructed traffic through the gates Rosenbrock
testified that during the first day of the strike cars were
being blocked for various periods A policy of blocking
for one minute per car was then adopted until the
police were called and we were harassed a lot And then
we decided to hold them up longer We might as well
hold them up as long as we could because we knew the
police would be there shortly Presumably the blocking
ended soon thereafter counsel for Respondent represent
ed that when Respondent sought an injunction the par
ties had agreed to stipulate to an order
In Clear Pine the Dotson Hunter opinion stated that
one of the activities which strikers have no right to
perform is to block access to the employers premises
Clear Pine supra at 1047 20 In this case however
there is no indication that one of the reasons Rosenbrock
was discharged in August was her participation in the
blocking in June The record plainly implies that all the
strikers took part in the blocking and none of them was
fired simply for impeding access Kole s notes in evi
dence refer to Rosenbrock swinging what appears to be
a sledge hammer 21 and also striking the Sullivan car
but make no reference to her participation in blocking
and at trial Kole s direct examination leading up to the
question of what provoked the sending of the discharge
notice dealt only with the mallet and Sullivan s car
damage with the latter receiving the heaviest empha
sis 22
20 Except for a refusal to adopt certain of the analysis in the Dotson
Hunter Clear Pine opinion the Zimmerman Dennis opinion agreed with
Dotson Hunter [i]n all other respects See Clear Pine at 1049 fn 7
21 This note has three stars next to it which Kole testified were
placed there by a person who was at that time assisting us a Mr Joseph
Clark the stars were his indications that they were important
22 Tr 78-80
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I conclude accordingly that Rosenbrock s participa
tion in the blocking played no significant role in the de
cision to terminate her
B Concluding Analysis
Despite my foregoing conclusion that the mallet inci
dent probably constitutes under prevailing law a legiti
mate basis for Rosenbrock s discharge other circum
stances in the case lead me to believe that the discharge
must be considered a violation of Section 8(a)(3)
As previously set out although shortly after the strike
began on 7 June three employees were quickly dis
charged (according to Respondents answer to the first
complaint one on or about 12 June for striking an auto
mobile with resultant damages exceeding $500 another
on or about 13 June for repeatedly threatening to kill
the family of a nonstnker and the third in or about mid
June for causing more than $500 damage to the automo
bile of a nonstnker) Rosenbrock was not terminated
until 13 August Kole explained that at the beginning of
the strike she was very reluctant to discharge any
body The three early discharges involved conduct
that [she] couldn t condone at all and that I knew hap
pened that I personally knew happened but discharges
in other less compelling cases might be thought to
cause more trouble than they resolved people would
feel very uncomfortable about it and perhaps become
more violent if you will and that it would only precipi
late anger When asked what changed her mind on 13
August regarding Rosenbrock Kole replied Subse
quent reports of continuing what I termed improper
picketing and prevailed upon by others that this was sen
ous and should be dealt with If it wasn t it was incon
sistent and I had to agree that that was accurate
As I read the foregoing Rosenbrock s perceived mis
conduct on 7 and 8 June did not fall into the category of
behavior which Kole couldn t condone at all it was
at least conduct which was not so egregious that it de
served immediate reprisal But there came a time in
August when other factors tipped the scale against Ro
senbrock [s]ubsequent reports of continuing improper
picketing and a need to act consistently
The need for consistency is not clear By drawing a
line in June between Rosenbrock and the strikers who
were fired at that time for damaging cars Kole had al
ready decided that the cases were different There is no
record indication of what inconsistencies arose between
June and August with respect to discipline meted out to
others vis a vis the previous failure to punish Rosen
brock
Moreover we know nothing about the subsequent re
ports of continuing improper picketing first re
ferred to by Kole as a reason for changing her mind
with respect to Rosenbrocks employment Whatever
these reports were they plainly played a triggering role
in the decision to fire Rosenbrock and yet Respondent
has completely failed to establish that it had as required
by General Telephone an honest belief that Rosen
brock played any part in such activities 23 Respondent
having failed to do so (and Rosenbrock having more
over generally denied that during 7 June through 13
August she engage[d] in any other acts of violence or
misconduct on the picket line ) it cannot be concluded
that Rosenbrock s termination was instigated by an
honest belief that she had participated in subsequent ac
tivities which reasonably tended to coerce or intimidate
employees
Kole s own testimony is that the discharge would not
have occurred had it not been for those strike related but
unexplained activities As was held in Drug Research 233
NLRB 253 260 (1977) enfd 621 F 2d 806 (6th Cir
1986) (Judge Kennedy dissenting on this point) Re
spondent however failed to establish at the hearing the
factual nature of the misconduct which it believed Ste
yens had engaged in In the absence of such a showing
the burden should not shift 24 Accord General Telephone
Co supra at 739-740 (when Respondent has failed to
identify the alleged misconduct of each employee it
creates an impossible task for the General Counsel to
show that the employees did not engage in such miscon
duct)
Accordingly the discharge of Karen Rosenbrock on
13 August 1986 was violative of Section 8(a)(3)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2 (2) (6) and (7) of the
Act
2 United Steelworkers of America AFL-CIO-CLC
and its Local Union No 13594 are labor organizations
within the meaning of Section 2(5) of the Act
3 By discharging Karen Rosenbrock on 13 August
1986 Respondent violated Section 8(a)(3) and ( 1) of the
Act
4 The unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent unlawfully discharged
Karen Rosenbrock on 13 August 1986 I shall recom
mend that it be ordered to make her whole for any loss
of earnings she may have suffered from 13 August 1986
to 10 December 1986 the date of Respondents offer of
reinstatement with interest in accordance with F W
Woolworth Co 90 NLRB 289 (1950) and New Horizons
for the Retarded 283 NLRB 1173 (1987) 25
23 Of course if the continuing improper picketing pertained to
activities of other strikers rather than Rosenbrock then the termination
of Rosenbrock would unquestionably have violated Section 8(a)(3)
24 Having so concluded I have not considered here the possibility of
applying the balancing test enunciated in NLRB v Thayer Co 213 F 2d
748 753 (1st Cir 1954) under which sinker misconduct is weighed
against the unfair labor practices which precipitated the strike As to
whether the Board still follows Thayer see Clear Pine 268 NLRB at
1047 1049 Southwest Forest Industries supra at 765 fn 5
25 See generally Isis Plumbing Co 138 NLRB 716 (1962) The remedy
does not include an order of reinstatement or backpay in excess of that
stated because the parties stipulated that on 10 December 1986 letters of
reinstatement (presumably valid offers in the absence of any qualifica
Continued
TOWN & COUNTRY NURSING HOME 81
I shall also recommend that Respondent be required to
post appropriate notices
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed26
ORDER
Respondent Town and Country Nursing Home Inc
Midland Michigan its officers agents successors and
assigns shall
1 Cease and desist from
(a) Discharging employees because of any lawful ac
tivities on behalf of United Steelworkers of America
AFL-CIO-CLC and its Local Union No 13594 or any
other labor organization
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against her in any way
2 Take the following affirmative action necessary to
effectuate the policies of the Act
tion by the General Counsel ) were sent to all of the sinking employees
including Ms Rosenbrock According to Abilities & Goodwill Inc 241
NLRB 27 fn 5 (1979) If a discharged sinker responds to the employer s
offer of reinstatement by continuing to withhold his or her services the
employers backpay obligation tolled and the employee resumes the status
of a sinker
26 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
(a) Make Karen Rosenbrock whole in the manner set
forth in the remedy section of this decision
(b) Remove from its files any reference to the dis
charge of Karen Rosenbrock on 13 August 1986 and
notify her in wasting that this expunction has been made
and that evidence of this unlawful discharge will not be
used as as basis for future personnel actions against her
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its place of business in Midland Michigan
copies of the attached notice marked Appendix 27
Copies of the notice on forms provided by the Regional
Director for Region 7 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
27 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al 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