Carver Manor Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1973

201 N.L.R.B. 572 (N.L.R.B. 1973)

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carver Manor Nursing Home , Inc. and Local 1199
Massachusetts National Union of Hospital and
Nursing Home Employees , R.W.D.S .U., AFL-
CIO. Cases 1-CA-7951 and 1-CA-8025
February 1, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 12, 1972, Administrative Law Judge'
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief. The Respondent
filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above entitled proceeding was held before the duly
designated Trial Examiner on April 24 and 25, 1972, at
Boston , Massachusetts , on complaint of the General
Counsel against Carver Manor Nursing Home , Inc., herein
called the Respondent or the Company. The complaint
issued on March 9 , 1972, based on separate charges filed
on November 5 and December 29, 1971. The principal
issue of the case is whether the Respondent unlawfully
suspended and later discharged an employee in violation of
Section 8 (a)(3) of the Act. Briefs were filed after the close
of the hearing by the General Counsel and the Respon-
dent.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a corporation organized under the laws
of the Commonwealth of Massachusetts , operates a
number of proprietary nursing homes , one of them located
in the city of Boston , Massachusetts . Its gross volume of
business is in excess of $100 ,000, and annually it receives
goods valued in excess of $50 ,000 from points located
outside the Commonwealth of Massachusetts for use in its
business within the State . I find that the Respondent is
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to exercise
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that Local 1199 Massachusetts National Union of
Hospital and Nursing Home Employees , R.W.D.S.U.,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. A Picture of the Case
In the nursing home where this case arose there are
about 100 elderly residents , some ambulatory and some
not, some more infirm than others . Total employment is
about 60, including registered nurses , licensed practical
nurses, nurses aides , and kitchen help. In May 1971 there
started a move towards joining the Union; Marion Owens,
one of the nurses aides , was the principal activist towards
that end. She had a number of employees sign cards and
on May 18 a petition requesting a Board election was filed
(Case 1-RC-11587). The parties signed a consent election
agreement on June 7 and an election was held on June 23,
1971. The results of the election are as yet undetermined,
for objections to the election were later filed and that
matter is now before the Board itself for decision upon
appeal from the Regional Director's report.
Owens was hired on September 9, 1969, and during the
period of the principal events in question worked the first
shift , from 7 a.m. to 3 p.m. On October 22, 1971, she was
suspended from work for 3 days, a disciplinary action,
according to the Respondent , for having failed to report
for work during an assigned shift without first advising
management of her intended absence . It is a firm rule in
the home that any employee who knows she will not report
for duty on schedule must give advance notice , at the latest
during the previous shift . Owens admitted at the hearing
she was always aware of this condition of her employment.
In consequence of the suspension , a charge was filed on
November 5, 1971 (Case 1-CA-7951), calling the suspen-
sion discrimination in employment in violation of Section
8(a)(3) of the Act.
Owens did not report to work on Wednesday, Thursday,
and Friday, December 1, 2, and 3, and again the following
Monday morning. She was discharged and a second charge
(Case 1-CA-8025) was filed on December 29; this
discharge , too, is alleged as a further violation of Section
8(a)(3).
201 NLRB No. 85
CARVER MANOR NURSING HOME, INC.
Between the filing of the petition for an election and the
Owens discharge , a number of other unfair labor practice
charges were filed by the Union against the Respondent.
On May 18, 1971, it filed Case l-CA-7652, alleging
violations of Section 8(a)(1). This case was settled
informally on June 17, and the Respondent posted the
usual notices accordingly.
On August 3, Case l-CA-7789 was filed, alleging many
violations of various sections of the Act . On August 31,
Case 1-CA-7789 was amended to charge unlawful discrim-
ination in the disciplinary suspensions of employees Keefe
and Bogiages . And on October 15 Case I-CA-7917 alleged
another violation of Section 8(a)(3) in the dismissal of
employee Hegarty . All three of these charges were
dismissed by the Regional Director , after investigation, on
October 31, 1971.
The Company knew that Owens had been active in
furthering the prounion campaign. The evidence which,
according to the General Counsel , points to union animus
in the suspension and later discharge of the woman, deals
with activities occurring almost entirely during the month
of May, not quite 6 months before the first disciplinary
measure taken against her . This was the conduct involved
in Case 1 -CA-7652, and which was set at rest by the
informal settlement agreement reached in that proceeding.
At the hearing the Respondent objected strenuously to this
evidence , arguing that if an employer can later be held to
account for such conduct in these circumstances , there is
no reason for the respondent in a Board proceeding ever to
agree to an amicable settlement . The Regional Director in
this instance did not set the settlement aside , presumably
because there was insufficient proof, apart from the earlier
events, that the Respondent had thereafter violated its
promise to abide by the statute . But, in view of the Board's
statement in Northern California District Council, 154
NLRB 1384, footnote 1, the evidence was received.
There is presented essentially a question of fact : does the
record as a whole warrant a finding that Owens was
suspended and later released because of her union activity?
And regardless of whether or not the Respondent has
established affirmatively that it acted solely because of her
delinquencies , the burden of proving illegal motivation
rests always upon the prosecution . See N. L.R.B. v. Glen
Raven, 235 F.2d 413 (C.A. 4).
B. Antiunion Activities of the Respondent and the
Activities of Ann Fitzpatrick
Martha Carney is coowner of the business and has direct
overall supervision of all the employees in this one nursing
home. She is in the place on actual duty everyday from 9
a.m. to 3 or 3:30 p.m., always on call at her home, and at
times returning in the evening , from about 7 to 9 p.m., to
check on everything and everybody. She testified that she
alone supervises all the nurses aides as well as the licensed
practical nurses. Apparently because no issue arose as to
the authority of the registered nurses , the record is not
clear as to just how many of them there are, what their
duties may be, or when any one of them is or is not at
work . It does appear that the 100 or so patients are divided
equally between the wings of the home , all on a single level,
and that during the second shift-from 3 to 11 p.m.-the
573
normal scheduling calls for two nurses aides on each wing,
and only one licensed practical nurse for the entire
operation. Fitzpatrick is the licensed practical nurse long
working on this shift , and because her status-supervisory
or not-was significantly disputed there is testimony as to
her relationship to the nurses aides who work with her on
that shift.
The evidence said to prove union animus against the
employees generally and against Owens in particular
consists largely of certain improvements in working
conditions granted everybody by the Company, and
certain activities of Fitzpatrick , whose status as a supervi-
sor, alleged by the General Counsel, is denied by the
Respondent.
On May 18, 1971, the very day the Union's representa-
tion election petition was filed, the Respondent posted a
notice announcing the following new benefits conferred
upon all employees : life insurance , medical expenses,
hospitalization (all paid by the Company) and a 25-cent-
per-hour increase in wages across the board to all
employees . Mrs. Carney, first called as an adverse witness
by the General Counsel , denied any knowledge of union
activities before the election was held in June . Recalled
later by the Respondent in defense , she reversed herself
and admitted, as she had to, that management did know all
about it before posting the notice . There can be no finding
now that the posting of that notice was an unfair labor
practice in violation of Section 8(a)(1) of the Act, for that
matter was settled and the settlement was not set aside.
Nevertheless, the timing of the pay raise and the new fringe
benefits does show an intent to put a stop to the
organizational campaign. The message to the employees
was clear , for, as the Supreme Court said in Exchange
Parts, 375 U.S. 405, the hand that gives is also the hand
that can take away.
There is a very direct credibility issue between two
groups of employees over Fitzpatrick 's behavior at the
critical time that the union authorization cards were being
signed . Owen's testimony , about the licensed practical
nurse's disruption of a principal union meeting, her
attempts to take back from the Union's possession cards
already signed , and her outrageous threats of reprisals, is
by far more credible than Fitzpatrick 's denials. Resolution
of this question is easy in the face of the testimony.
Whether Fitzpatrick's conduct was binding upon the
Respondent, however , is quite another matter. Considering
all the testimony there can be no findings she was a
supervisor within the meaning of the Act.
As to the duties of the nurses aides , the record shows
only that they take care of the patients , fold their clothing,
prepare them for changes , feed them , put them to
bed-"regular routine care." As to the licensed practical
nurse, she also "is taking care of patients," gives them
medicine, calls the patient's doctor for advice if anything
seems . wrong, and keeps Mrs. Carney "advised" by
telephone of any and all unexpected developments. The
aides are paid between $ 1.60 and $2.50 per hour;
Fitzpatrick received $26 for an 8-hour day.
As already stated , in Fitzpatrick's shift four aides are
regularly assigned , two on each wing. It happens at times
that one or more does not show, and then a girl may have
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be shifted from one wing to the other. It is this business
of shifting a nurses aide to the other wing that the General
Counsel says proves Fitzpatrick's supervisory authority.
Mrs. Carney is always in the home when the shift changes
after 3 p.m., and if there is any need for reassigning anyone
she does it before going home. She testified, and Fitzpa-
trick corroborated her, that if ever an aide just departs
later, or wishes to leave early, the licensed practical nurse is
under orders to telephone Mrs. Carney for instructions,
and that she never shifts people around, or grants time off,
or exercises any authority, without in every case first
reporting to Mrs. Carney. There is no claim that Fitzpa-
trick has power to hire or discharge, promote, set wages,
effectively recommend, etc. It is very doubtful whether the
transfer of a girl from one wing to the other, on the unusual
occasion it is necessary, and in view of how little it means
to the employee anyway, would suffice to make Fitzpatrick
a supervisor. But in any event, even the testimony of
Owens herself tends to support the denials of Fitzpatrick
and Mrs. Carney.
Owens said that when she asked Fitzpatrick for time off,
"She [Fitzpatrick] would say, 'Well, I'll let Mrs. Carney
know.' " On being shifted to another wing, Owens'
testimony is that she [Fitzpatrick] "Sometimes ... told me
Mrs. Carney wasn't home or there was no answer at her
home." And on one occasion she heard Fitzpatrick
apologize to Mrs. Carney for having told Owens, without
first obtaining Carney's approval, she could leave an hour
before the end of her shift. But this, of course, only
supports the contrary testimony that Fitzpatrick could do
nothing of significance without first telephoning Carney.
Louise Baxter, also a former nurses aide, said she
"assumed" Fitzpatrick was a supervisor, but "nobody
mentioned it." There is little weight in Owens' further
testimony that Mrs. Carney once told her she should
inquire of Fitzpatrick whether any patient needed "special
care," or that Fitzpatrick herself once called herself the
"boss." Fitzpatrick gave the impression of being the
"bossy" type by nature.
Mrs. Carney testified she is the sole supervisor over all
the employees; she strained somewhat, for the answer to
the complaint admits her husband, also an owner, spends
time in the home, and that there are two other at least part-
time supervisors in this home, Lou Del Sesto, regional
administrator, and Donald Mae Quarrie, administrator. At
most the record speaks of there being five employees on
duty during the second shift, Fitzpatrick and four nurses
aides. The total is not so great as to compel an inference
that one of them-the higher paid-of necessity has to be
clothed with supervisory status in the statutory sense.
Fitzpatrick was opposed to having a union in the nursing
home, and, as will appear, she helped some of the
employees try to take back from the Union authorization
cards they had signed, and she told Owens, and others,
they would be fired if they persisted in the union idea.
Conceivably there could be a finding on this record that
although not a supervisor, she acted in all this with the
knowledge of management and therefore as its chosen
agent. There is not sufficient reason for reaching that
question, however, for the timing of Owens' discharge,
about half a year later, and the circumstances of her
separation , require dismissal of the complaint even
assuming the Respondent can be held accountable for
Fitzpatrick's antiunion activities.
After successfully soliciting a number of union cards,
Owens planned a meeting at her home for the evening of
May 15, for the employees to hear Keady, the union
organizer, speak . She told the following story about
Fitzpatrick 's conduct respecting that meeting. On the 14th,
Fitzpatrick, having heard about it, told Owens she might
not be able to come . Owens answered it was no concern of
Fitzpatrick's anyway, and Fitzpatrick came back with "she
would make it her business ," and that Owens would "be
fired" because of these activities.
Owens' story continues that at noon the next day, she
being off duty, Fitzpatrick's son John came to her home
and asked for the return of certain signed union cards.
Owens gave him nothing ; an hour later Fitzpatrick
telephoned and, in vulgar language, also demanded the
cards . Owens said she did not have the cards and that
maybe Keady, who would be at her home at 8, might have
them . Fitzpatrick then mentioned Mrs. Carney and added
the help would be discharged if they persisted. At 7 that
evening Fitzpatrick appeared at Owens' home with a group
of part-time employees and on their behalf demanded
again that Owens return the union cards. Again Owens
said she did not have them . Fitzpatrick "yelled" a good
deal and announced that she would be back in an hour.
She did come back at 8, still accompanied by the part-
timers , and now talked to everybody, repeating the
employees would lose their jobs , and that Owens had
forced them to sign the cards . Owens ended her recital with
saying Keady talked to the irate Fitzpatrick , and that the
invading group stayed 3 hours, Fitzpatrick "hollering most
of the time."
It was quite a story Owens told, and considerably
embellished. She and Fitzpatrick had been friends and
obviously had a great falling out over this union business.
Still, 3 hours is a long time for only one woman among
many to do all the hollering. It was not really 12 part-
timers Fitzpatrick brought along, but closer to 5. And I
doubt there were 14 others already at the meeting, as
Owens said , for the other witnesses could remember only
fewer names . But on the substance of her testimony,
corroborated by two other witnesses from the meeting as
well as by Keefe, who was also at Owens' home when
Fitzpatrick first came at 7 p .m., I do believe her, for
Fitzpatrick 's version of what happened that day is far less
credible . As to the demeanor of these two principal
witnesses-Owens against Fitzpatrick-there is little to
chose. And the total objectivity of each at the hearing left
much to be desired-Fitzpatrick when speaking of what
happened in May and Owens speaking of what happened
in November and December , when she was discharged.
Fitzpatrick denied ever telling anyone they would be
discharged for joining the Union , or advising employees
not to join , or suggesting they seek to recover cards already
signed , or herself asking for the return of any union cards.
As she would have it, her son , who does not work for the
Respondent, just chanced to bring a group of employees to
her home that Saturday evening , May 15, for a social visit.
As they chatted, the telephone rang ; it was Owens inviting
CARVER MANOR NURSING HOME, INC.
them all to the meeting. "I said, `That's Marion Owens. She
wants me to go to the meeting , but I don't know whether I
should or not but, 'I said, 'oh, I think I will.' " They all got
into her son's car and proceeded to the Owens home.
If Fitzpatrick really had no interest in the planned union
election because , as she said, she considered herself a
professional person , there was no reason for her to go to
the union meeting, invited or uninvited . Her more
revealing comment was that there was any hesitation at all
about accepting the invitation. The truth of the matter is
these people had gathered, first at the nursing home-some
leaving work before the end of their scheduled shift-and
then at Fitzpatrick's home, for the express purpose of
falling upon the union meeting en mass in an effort to pick
a fight and get their union cards back. The Respondent
called Betty Wheeler, the son's girl friend, to support
Fitzpatrick's testimony. Wheeler said the group consisted
of five girl employees, all of whom had signed union cards,
together with Fitzpatrick and her son. Her opening
statement was that there had been no talk about the Union
among these girls before going to Fitzpatrick 's house. She
did recall going to the nursing home earlier in the day with
John, John using the public address system in the building
to call the names of certain employees , two of them-Peg-
gy Joyce and Betty Breene-then on duty but leaving their
work to join the group, and then proceeding to Fitzpa-
trick's home. "How come Johnny on the intercom called
out the names of these two girls .... A:... just to call
them." Wheeler then admitted she knew there was going to
be this meeting, she had been invited by Owens to go there
long before any telephone invitation at 8 that night, and
that the reason why she and the other girls went to the
meeting at all was to demand return of their signed cards.
Somewhere along the lines she slipped in the idea it was her
grandmother who suggested she get her card back. Had
Wheeler been a boy her grandmother would probably have
died-figuratively only-on the opening day of the
baseball season.
She also testified on direct she had not been at Owens'
home that day before 8 in the evening . On cross-examina-
tion she made a complete reversal on this too. Now she
admitted she and the others had gone to Owens earlier and
demanded their cards, but "She said that the cards weren't
there. We would have to come back tonight to get them."
This was the Respondent's witness speaking, and she now
proved Owens right and Fitzpatrick wrong. I do not
speculate on what motivated Wheeler at the hearing; she
was not on trial. It is clear, however, and I find Fitzpatrick
is a completely discredited witness . I find she did tell
Owens, in the nursing home, she would be fired because of
the Union, she several times demanded Owens to return
signed union cards to her, she arranged the mass visit to
the union meeting , and there attempted to put a stop to the
union campaign by repeating the threat of discharge to all.
Owens also testified that when Mrs. Carney returned to
the home on the evening of May 14 and said Fitzpatrick
had no authority to release Owens early, the owner also
said she knew all about the planned union meeting and
took the aide into the office. There, still according to
Owens, Mrs. Carney told her she was acting "against the
law," she had no right "to try to organize the union," she
575
was a disgrace to the Company, and that the Company
should have "got rid of me before ." "At that time she told
me that I would lose my job and that I would never get a
job in any other nursing home and she would see to it that
I wouldn't." Owens added that shortly after she started
work on the 16th, the day after the union meeting, Mrs.
Carney told her she knew everything that had happened
there and called her a "filthy sneak." Carney's only
response to all this testimony is that she never spoke
offensively either to Owens or about her.
Mrs. Carney's opposition to having a union in her
place of business is clearly established by the simultaneous
grant of unannounced benefits to all the employees. I
credit Owens as to what Carney told her at that time, and I
find it a fact the superintendent threatened to discharge
her because of her union activities.
On October 15 a nurses aide named Hegarty was
discharged and some of the other employees asked Owens
to intercede with management on her behalf . Owens met in
the office to make a pitch towards that end with Mrs.
Carney, Mr. Carney-her husband and coowner-Del
Sesto, and MacQuarrie , administrators . As to this meeting
Owens testified that, when she explained Hegarty's
innocence of whatever had been charged to her, Mrs.
Carney called her a liar and told her she should "mind my
own business ." Mr. Carney added there was no peace while
Owens was working in the home , and that while he thought
"the union was all over with," only the night before he had
seen Keady, the union agent, outside the home talking to
employees . Owens answered this was another matter, and
continued to testify that Mrs. Carney then called her a
"pain in the neck ," adding Owens "should have been fired
or I could have been fired . I really wasn't positive in what
context she used it." Apart from Mrs. Carney's general
denial that she ever spoke offensively to Owens, all of
Owens' testimony about this incident stands uncontradict-
ed except for testimony by Mr. Carney that his wife did not
call Owens a liar and that he refused to discuss Hegarty's
discharge with her.
I credit Owens with respect to this incident too. This
evidence proves once again that the Respondent was
aware , even as late as October 15, that Owens was still
active in the Union. In fact, Mr. Carney admitted as much
at the hearing. As to whether Mrs. Carney also gave voice
at that time to an intent to discharge Owens because of
such activity , the employee's testimony does not suffice to
prove the fact . If what the owner said was that she "could
have" punished Owens in this way but did not-and the
nurses aide's testimony can be so taken-it would indicate
instead a more moderate attitude towards the unioneer.
C. Suspension and Discharge
On July 26 Owens was transferred from the afternoon to
the morning shift , working from 7 a .m. to 3 p .m. She was
discharged early in December. Mrs. Carney first stated the
reason generally as the fact she was out too often,
sometimes called in in advance and sometimes did not. As
the testimony developed three successive incidents were
explored, all involving asserted violation of the conceded
rule that all aides are absolutely required to advise the
Company in advance if they do not expect to appear for
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work as scheduled. There is no need to state how fair and
necessary a rule of this kind is in a nursing home where
ordinarily only two nurses aides are charged with responsi-
bility over 50 patients. The affirmative defense of discharge
for cause being that Owens violated the reporting rule, the
General Counsel countered with Owens' own testimony
intended to prove that in fact she did not violate the rule.
On this question of what she did or did not do on the
disputed occasions, the woman's testimony is so full of
inherent improbabilities, pat evasions, and extremely
implausible explanations that it cannot be fully believed.
Her first direct absence is a good example of the quality of
her testimony. She did not report to work at all on her
scheduled 7 a.m. shift on Monday, October 11. When she
came in on Tuesday MacQuame talked to her about her
absence and found fault with her. As an excuse she showed
him "prescription bottles." At the hearing Owens belittled
this obvious violation of the rule by saying she took sick on
Saturday and had not called because she was at the
hospital for help from 5 to 9 a.m. Monday morning,
suffering from "chronic bronchitis." She also added the
doctor advised her not to work Tuesday but she did
anyway. The following month, according to her, she had
relatives and friends make all kinds of telephone calls to
the home to advise about expected absences . Why she did
not call on this occasion during the weekend, if she really
felt ill on Saturday, or have someone else call, or call from
the hospital on Monday morning, is difficult to under-
stand. The whole story, coupled with a bland statement
there was no telephone in the hospital, is very unconvinc-
ing. Her indisposition could hardly have been too
immobilizing if she came to work the next day.
Owens was out again on Thursday, October 21. When
she came to work the next day Mr. Carney asked had she
called in before her absence the day before, because if she
had not "there is going to be trouble." Owens told him her
sister had called on her behalf. Apparently the Company
could find no record of any call, and in the afternoon
MacQuarne asked Owens whom had her sister talked to;
Owens answered "a woman." Later that day Owens
received a special delivery letter at home suspending her
from work for 3 days as a disciplinary measure for again
violating the reporting rule.
The theory of complaint here is that Owens had made
the timely call, that the Respondent's supervisors knew it,
and that they imposed the penalty out of pure malice. This
must be the contention of the General Counsel, for if there
was a mistake-if the lady's sister did telephone somebody
and the usual notation simply was not made-no inference
of malice could be made against the Company; Owens in
that case would just be another employee suffering from
the vicissitudes of chance at the hands of an employer.
And in that event the discharge a month later must also be
viewed in the context of an employee twice warned for a
like offense.
I do not credit the testimony of either the sister,
Shedenhelm, that she made the call, or of Owens that she
heard her sister talk to someone at the home. This time it
was "strep throat" that ailed Owens. To start with, there
really is no good explanation of why Owens did not call
herself and speak to someone she knows at home.
Shedenhelm lives across the street from her sister, and her
job starts at 9:30 a.m. How did she happen to be in Owens'
home at 6 a.m. that morning ? Owens said she had come to
see how her sister was feeling , because "she hadn 't heard
from me that Sunday ." Owens added she had been sick in
this fashion all week. But she worked every day until
Thursday. How come she had been unable to communi-
cate with her sister across the street all that time? A very
unlikely story. In contrast with Owens' testimony , Sheden-
helm said she called at this early hour because her sister
had been sick "the night before." Moreover, Mr. Carney
testified that when he spoke to Owens the day after this
absence , and asked for an explanation , Owens said her
sister had spoken to "Peggy" on the telephone. The
testimony is direct and uncontradicted that "Peggy,"
whoever she is, was not on duty at that time . It was with
this statement that management decided to warn and
discipline the nurses aides . I credit Carney 's testimony that
there was no record of any call from Owens and that he
acted accordingly.
The testimony as to what happened in the beginning of
December draws an incredibly bizarre picture. The best
that can be said is that at that time Owens was not sure of
what she wanted , and, in consequence, of what she was
doing. The reasons for her uncertainty are of no concern to
this case . What is pertinent here is that the fundamental
reason for the reporting rule is that this Company must
know, with certainty, who will report for work on schedule
and who will not. Notice from any employee that she
maybe will and maybe will not come when she is needed is
quite the equivalent of no call at all. The Company is left in
the same quandary in which it finds itself when someone
dust does not show up.
Owens did not report to work Wednesday, Thursday,
and Friday, December 1, 2, and 3; she had served a regular
shift ending at 3 p.m. Tuesday. There then occurred a
number of telephone conversations from Owens and her
friends to people in the home; the collective testimony
about all this is so conflicting, inconsistent , and confused
as to defy coherent reporting. In the end the Respondent's
position is that it could not make heads or tails about
Owens' intentions from one day to the other as to whether
she was coming to work the next day or not and therefore
the following week discharged her. As Mrs. Carney said at
the hearing, she has "problems". Covering 50 patients in
each wing and could not tolerate the sort of uncertainty
and absences created by Owens that week.
Owens started by saying she had her friend Keefe
telephone the home at 10 p.m. Tuesday evening to say: "I
would be out for a couple of days because I was getting
married and I had to go for blood tests." Asked why she
did not herself make the call, she answered : "Because I
preferred not to speak to Mrs. Fitzpatrick." No one asked
her at the hearing why she had not informed the
Respondent during the same day while she was at work
about such a momentous decision, but the question does
arise in a fair appraisal of the whole story where credibility
becomes an issue.
At this point Owens, still on direct examination, lapsed
into virtual incoherence. She said the next morning,
Wednesday, at 6 a.m., she telephoned Davis, a supervisor,
CARVER MANOR NURSING HOME, INC. 577
to inform him she was going to be marned; no, she did not
call him that morning, she had called him the night before;
no, some one else had called for her, she never called
anyone on Wednesday!
Owens continued that she did call the home the next
morning, Thursday, and told Davis she would not be in
and that he answered he knew all about her getting
married. And again one wonders: If Keefe had really
called on Tuesday evening to say Owens would be out "a
couple of days" what reason was there for Owens to repeat
the message Thursday? Or is it that Keefe did not convey
any understandable and reliable message on Tuesday?
Owens followed this with testimony of a conversation
with MacQuarrie, apparently on Thursday evening. She
said MacQuarrie had called her home to inquire was it true
she was planning to marry a certain Mr. Baker, and that
she returned his call to ask why were people saying she was
going to do that. He said he knew nothing about it, and,
asked "Do you think you'll be in?" She answered, "I'm
really not sure ...... With this Davis said to her: "Well,
make sure you call." Owens continued that the next
morning, Friday, she called and spoke to Mrs. Meacham,
to say she was not coming in.'
On the Company's curiosity concerning the identity of
the fiance, there is also testimony by Keefe. She said
MacQuarrie called on Wednesday evening, December 1, to
say: "I heard Marion's getting married. Is she marrying
Don Baker?," and that she answered "No," she was not
marrying Baker, and that she (Keefe) did not know who
the lady was going to marry. If Keefe is to be believed, this
was the total conversation during that call; after she said
she did not know "Who," the supervisor simply comment-
ed "Okay," and hung up. Keefe's testimony sounds like
fantasy. Whatever interest MacQuarrie may have had in
the matter, if he ever had any, surely it must have gone
beyond a mere okay when he heard nothing. And would
the expectant bride's close friend not have felt impelled to
talk about the groom?
Again on Monday Owens did not go to work, although it
was a scheduled day for her. Instead, she testified, she
telephoned during the night shift at 5 a.m. This time she
had another reason: ". . . sometimes in an emergency they
would have you work the week ends, you know . . . so I
wanted to make sure I did not have Monday off." At the
hearing Owens said she intended to work that day but the
nurse who answered the telephone said she was "supposed
to call Mrs. Carney." Owens' explanation of why she
telephoned at all instead of reporting to work as she was
supposed to is not persuasive in the circumstances ; nothing
had happened to indicate even a possibility of change in
assignments. What weekend emergency did she have in
mind? She knew she had not worked the weekend just
passed, so there could have been no shift backwards from
that Monday for her. Could the Company possibly so early
have anticipated an emergency to come the following
weekend, 6 days later? Or could it be Owens already sensed
I Arguing for the defense , the Respondent's brief at one point justifies
the dismissal of Owens with the following statement * "The manner in which
Marion Owens allegedly notified the need for a personal absence indicates
an undependable and/or an inefficient employee." The following single
excerpt from Owens' testimony , when she re-explained her telephone
conversation with a supervisor at the home on Thursday , well illustrates the
that morning her days as an employee of the Respondent
were numbered , that the ax was about to fall? She
telephoned again at 8:30 and spoke to MacQuarrie, who
said he knew nothing about calling Mrs . Carney and
suggested she call again . Thirty minutes later Owens calls;
now MacQuarrie says "come down to the nursing home,"
and Owens asks "what for?" As already stated , there is so
much in all this testimony that is simply too difficult to
understand , but a most illusive part is Owens' statement to
MacQuarrie at that moment : "What for?" She wanted to
go to work; he told her to come ; she answered him
pugnaciously . But the prosecution position is that the
Company decided later , after conspiring with its lawyer, to
throw her out . Owens' position is that nothing untoward
had happened at all the previous week , that management
had been gracious and understanding to her . Then why
was she quarreling with anyone at this moment?
Later Owens did come to the office and talked a while
with Mr. Carney , Del Sesto, and MacQuarrie . She was
questioned about her absences , she was told she was
supposed to communicate with Mrs . Carney if she was
going to be out, Mrs. Carney said she had no idea where
Owens had been or whether she was coming to work or
not, and the Company insisted that none of the asserted
messages had been received . Owens at this point was
simply told to go home , and a week later, on December 13,
she received a termination notice. In pertinent part it
reads : "After consideration of the circumstances surround-
ing your last absences from Carver Minor Nursing Home
and in view of the fact of your previous suspensions
because of absences e n c e s .
The best that can be said of Owens' testimony is that she
did no more than comply superficially with the reporting
rule she knew she was in fact violating that week . It may be
that she was herself uncertain from day-to-day whether she
was going to report for any scheduled shift . In view of her
own admission of hesitancy-at least once directly ex-
pressed to management , as when MacQuarrie asked her on
Thursday whether she was coming in on Friday-I must
credit the total import of the Company' s witnesses. I find
she gave the Respondent ample cause for discharge. The
Company simply was never sure whether she would be in
the next day ; this Company cannot operate in that fashion.
Granted ambiguity on details in the Company 's story as
well as in that of Owens' and the others, the lady's story is
surely the less credible. When Keefe , long time friend of
Owens , living next door , alone in her friend 's apartment, at
a time that normally would excite and thrill all women,
said she never knew the name of the man her friend was
about to marry, she plainly lost credibility in this case. And
Owens was so mixed up at the time of the events , as well as
in the retelling , that she insisted she first obtained a
marriage license and then the prerequisite blood test. I do
not believe she intended to lie; she never was married.
The General Counsel makes the usual argument that
even assuming Owens did violate the reporting rule, the
correctness of the Respondent 's position : "Oh, excuse me. When I had
talked to Mr. MacQuarrie , Mr. MacQuame asked me how much time I
would be taking off to get married and I said, 'Well, I think it will be just the
three days .' And he said, 'Oh, aren 't you going to have a honeymoon or
anything?' And I said, 'Well, I'm not sure really of the date . I haven't set a
date yet .' That's what I had-I had forgotten about that."
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not suspend and discharge her for that
reason . For this position he relies on the proof that back in
May the Company showed general union animus in its pay
raises and other grants of benefits to defeat the organiza-
tional campaign . It is also true that about the time of the
election , in June , Mrs. Carney threatened the lady with
discharge , although this was long ago , before the settle-
ment of Case 1-CA-7652, and only remotely related to the
October and December incidents . If the Regional Director,
who issued the complaint , believed there was substantial
evidence of statutory misconduct by the Respondent after
the settlement agreement had been complied with, he
would have set the settlement aside.2
In further support of the suggested inference of hidden
unlawful motivation against Owens , the General Counsel
offered testimony by Owens that the day after the May 15
union meeting at her home , the usual weekly work
schedule was posted with the names of every employee
who had attended the meeting-but not those who came to
break it up-underlined in red . Owens also said that after
her name there appeared in the handwriting of Mrs.
Carney the phrase "Out in 2 weeks ." Former employees
Baxter , Keefe, and Bogiages corroborated Owens about
the red underlining , but Keefe said she saw no writing after
Owens ' name . A number of witnesses , mostly former
employees, said at the hearing that every employee whose
name was so underlined had already been separated from
the Company by the time of the hearing in March 1971; no
one on behalf of the Respondent contradicted them.
It is not charged . and of course there is no evidence at
all, that anyone other than Owens was discharged for an
illegal reason . Rather, charges of illegal discrimination
were filed as to these very three persons who were at the
meeting , and they were all dismissed for lack of merit.
What the General Counsel is arguing in this case , in utter
2 It should also be noted that an attachment to the charge in Case
1-CA-1971 in detail accuses the Respondent of unlawful interrogation,
threats of loss of employment , surveillance , solicitation of employees to
withdraw from the Union , etc. As of October 31, 1971, when the Regional
Director dismissed this charge , he was satisfied there was no proof of these
allegations
J There is no justification for belaboring the obvious Two of the General
Counsel 's witnesses who testified about this business of the red underlining,
and a third , were disciplined for violating the very rule for which Owens was
disregard of these facts , is that because a number of
employees attended Owens' union meeting , and because
their names were marked on the next work schedule, it
must be presumed and never mind the total absence of
charge or proof , that the Respondent violated Section
8(a)(3) of the Act with respect to every single one of them.3
Having set up this fiction , he then says any employer who
has punished all others who had gone to the meeting-8, or
was it 14?-would naturally do the same to the last
one-Owens . If all of this is advanced as logic in this case,
it merits no considerations .4
Nor is the substantive case in favor of the complaint
strengthened by the fact Mrs . Carney and her husband
called in the lawyer when they confronted Owens with her
final dereliction and decided to discharge her, or by the
fact, also urged by the General Counsel, that they advised
her of their decision , both in the suspension and the
discharge, in writing. Such precautions are to be expected
of any Respondent put on the defense by Labor Board
charges five times within 7 months . If this sixth time the
Respondent thought it best to consult a lawyer before
doing anything , and to make a paper record of what it did
do, it can hardly be criticized for the strategy. And of
course had it not given Owens the opportunity to explain
her bizarre behavior of the previous week , the Respondent
would now be accused by the General Counsel of
suspiciously summary action.
I find the evidence on the record as a whole insufficient
to support the allegation of illegal discrimination against
Owens, and shall therefore dismiss the complaint.
RECOMMENDED ORDER
Upon the entire record it is hereby recommended that
the complaint be, and it hereby is dismissed.
dismissed Keefe and Bogiages were suspended because of this delinquency,
and Hegarty was ternunated because of it These are the three persons on
whose behalf charges were filed, and what the government's dismissal of
these charges really proves is that the Respondent made no exception of
Owens.
4 Owens testified there were 14 employees at her home when Fitzpatrick
and her crowd arrived , but the witnesses together could recall only eight
names