Cherry Hill Convalescent Center

National Labor Relations Board - Board Decisions

Nov 16, 1992

309 N.L.R.B. 518 (N.L.R.B. 1992)

518
309 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 2, 1992, Administrative Law Judge Robert W. Leiner
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a brief in response
to the Respondent’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent excepts to the judge’s credibility findings and
asserts that the judge’s findings of fact and conclusions of law re-
flect bias. After careful review of the entire record, we find that this
allegation is without merit. There is no basis for finding that bias
and partiality existed merely because the administrative law judge
resolved important factual conflicts in favor of the General Coun-
sel’s witnesses. As the Supreme Court stated in NLRB v. Pittsburgh
Steamship Co., 337 U.S. 656, 659 (1949), ‘‘[t]otal rejection of an
opposed view cannot of itself impugn the integrity of competence of
a trier of fact.’’ Furthermore, it is the Board’s established policy not
to overrule an administrative law judge’s credibility resolutions un-
less 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.
1 The underlying unfair labor practice charges, and amended
charges, filed by the above-captioned 1115 Nursing Home and Hos-
pital Employees’ Union (the Union), were served on Respondent on
April 5 and June 18, 1991 (4–CA–19682); on May 8, 1991 (Case
4–CA–19761), and July 19, 1991 (Case 4–CA–19941).
2 Along with her brief, General Counsel submitted a motion to cor-
rect transcript, dated April 30, 1992. The motion, unopposed, is
granted.
Cherry Hill Convalescent Center and 1115 Nursing
Home and Hospital Employees Union, a Divi-
sion of 1115 Joint Board. Cases 4–CA–19682–
4–CA–19761, and 4–CA–19941
November 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The questions presented here are whether the judge
correctly concluded that the Respondent violated Sec-
tion 8(a)(1) of the Act by making coercive statements
about the consequences of unionization and violated
Section 8(a)(3) of the Act by suspending and discharg-
ing Valerie Williams.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cherry Hill Convalescent
Center, Inc., Cherry Hill, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Margarita Navarro-Rivera, Esq., for the General Counsel.
Richard B. Slosberg, Esq., of Harrisburg, Pennsylvania, for
the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard on February 20–21 and March 9–
10, 1992, in Philadelphia, Pennsylvania, on General Coun-
sel’s consolidated complaint dated June 21, 1991 (Cases 4–
CA–19682 and 4–CA–19761), and on General Counsel’s fur-
ther complaint in Case 4–CA–19941, dated August 19,
1991.1 The complaints allege violations of Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act), in that
Respondent, on March 27, 1991 (Tr. 346) at a meeting of
employees, in order to discourage their support of the union,
told them that (1) they were doing better before the Union
was selected; (2) if it were not for the Union the atmosphere
at Respondent’s facility would be like a family; (3) the
Union was trying to cut vacation time and health benefits;
(4) Respondent’s hands were tied and it could not do any-
thing for the employees now; and (5) that Respondent could
not answer questions because of the Union. Separately, it is
alleged that on or about April 2, 1991, Respondent, in order
to discourage employees from supporting the union, told an
employee that (1) the employees could not get anything with
the Union in the facility and (2) that the employees would
be better off without the Union and would have what they
wanted without the Union. The complaints further allege
that, in violation of Section 8(a)(3) and (1) of the Act, Re-
spondent, on April 23, 1991, unlawfully suspended its em-
ployee, Valerie Williams, and on July 10, 1991, unlawfully
discharged Valerie Williams and thereafter refused to recall
or reinstate her.
Respondent’ filed timely answers to the above allegations,
admitted certain allegations, denied others and denied the
commission of unfair labor practices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to file posthearing briefs. Briefs
were timely submitted and duly considered.2
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, together with an evaluation of their testimony
and other evidence of record, I make the following
FINDINGS OF FACT
I. RESPONDENT AS A STATUTORY EMPLOYER
The complaints allege, Respondent admits, and I find, that
Respondent, at all material times a New Jersey corporation
engaged in the operation of a nursing home in Cherry Hill,
New Jersey, in the course and conduct of its business oper-
ations, derived annual gross revenues in excess of $100,000
and annually purchased goods valued in excess of $50,000
directly from points located outside the State of New Jersey.
On the basis of the above admissions, I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and a health care institu-
tion within the meaning of Section 2(14) of the Act.
519CHERRY HILL CONVALESCENT CENTER
3 In both the consolidated and separate complaints, the Union is
erroneously described as a labor organization within the meaning of
Sec. 2(2), (6), and (7) of the Act. Those sections of the Act do not
define ‘‘labor organization,’’ which is defined in Sec. 2(5) of the
Act. Since it appears that this was a repeated error and led to no
confusion or misapprehension at the hearing, or thereafter, I ignore
the pleading and make the above finding.
4 The complaints allege and Respondent admits that R. Steven
Scherfel, president; Wilhelmina Long, director of nursing (D.O.N.
Long); Gregory Marks, administrator; and Martha Aslarona, assistant
director of nursing (D.O.N. Aslarona); are Respondent’s supervisors
and agents within the meaning of Sec. 2(11) and (13), respectively,
of the Act. At the hearing, Respondent conceded that its registered
nurses are statutory supervisors (Tr. 316); that all of its registered
nurses and LPNs are authorized to issue disciplinary warnings as
part of the disciplinary machinery of the facility (Tr. 397–398); and
that its RNs and LPNs are its ‘‘first line supervisors’’ (Tr. 399). I
find, therefore, that all RNs and LPNs are Respondent’s statutory su-
pervisors and agents. As noted in the text, both LPNs and profes-
sional employees are excluded from the unit.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaints allege, Respondent admits, and I find that,
at all material times, the Union has been and is a labor orga-
nization within the meaning of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
The General Counsel alleges and Respondent admits that
the following unit of employees at the Cherry Hill facility
constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time service and mainte-
nance employees employed by the Respondent at its
Cherry Hill facility, but excluding all technical, profes-
sional, managerial, confidential employees, license prac-
tical nurses, guards and supervisors as defined in the
Act.
The General Counsel further alleges, and Respondent fur-
ther admits, that not only was the Union certified by the Na-
tional Labor Relations Board as the exclusive bargaining rep-
resentative of the unit on September 28, 1990, but that by
virtue of Section 9(a) of the Act the Union, at all material
times, has been and is the exclusive representative of the unit
employees for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
Respondent’s Cherry Hill facility, a multiwing, two-story
nursing home, employs a total of about 110 employees,
about 70 of whom are in the unit. The unit consists of about
20 nurses aides, the balance being dietary, housekeeping,
maintenance, and receptionist employees. In addition, there
are approximately 7 to 8 registered nurses and 10 to 12 li-
censed practical nurses (LPN). Respondent’s operations are
based on a 3-shift day of 8 hours per shift; the first shift,
6:45 a.m. to 3 p.m.; second shift, 2:45 p.m. to 11:15 p.m.;
third shift, 11 p.m. to 6:45 a.m. The director of nursing of-
fice is on the first floor near the main entrance (Tr. 707;
812–813). The desk station for the charge nurse is on the
first floor, about 20 feet from an exit leading directly to an
adjoining employee automobile parking area.
As above noted, on September 28, 1990, the Union was
certified as the unit’s exclusive collective-bargaining rep-
resentative and there followed five collective-bargaining ses-
sions between November 13, 1990, and March 27, 1991. The
Union’s bargaining committee at the negotiations consisted
of the alleged discriminatee, Valerie Williams, a nurses aide
or nurses’ assistant, together with at least six other unit em-
ployees and the union business agent, Nat Hall (Tr. 17–19).
Although Valerie Williams was named (by Nat Hall) chair-
man of the bargaining committee, there is no proof that Re-
spondent was aware of her chairmanship. Respondent’s bar-
gainers were its president, R. Steven Scherfel, its controller
Linda Lopez, its administrator and vice president, Gregory
Marks, and its attorney. The collective-bargaining sessions
occurred at night, before the date of Valerie Williams’ April
24, 1991 suspension and her discharge on July 10, 1991 (Tr.
22).
B. Alleged Independent Violations of Section 8(a)(1)
1. Scherfel’s March 27, 1991 speech to employees
At the 6 p.m. collective-bargaining session on March 26,
1991, Respondent’s attorney gave Scherfel a letter to be dis-
tributed the next day (March 27) to employees. The text of
the letter would form the basis of a speech by Scherfel to
the unit employees following a meeting of employees on pro-
fessional matters addressed by Director of Nursing (D.O.N.)
Wilhelmina Long on the next day. A further bargaining ses-
sion was scheduled for the evening of March 27. The letter
(R. Exh. 11) was distributed to the employees following the
afternoon staff meeting on March 27 and the instant com-
plaints do not allege statutory violations for anything appear-
ing on the face of the document.
Scherfel testified that the letter was prepared by Respond-
ent’s attorney, Larrabee, because a number of employees had
inquired as to the status of negotiations, that the nurses aides
constituted a majority of the bargaining unit, and that he took
the opportunity, at the conclusion of the staff meeting, to
bring the employees up to date with regard to how Respond-
ent regarded the negotiations. He testified that he read the
letter verbatim (Tr. 545), and had given a copy of the letter
to the Union during the previous evening’s negotiations and
had inquired if the Union had any problems with the letter.
Nat Hall told him that he had no problems with the letter.
After he read the letter, employees questioned when they
were going to get a raise and how long they had to endure
negotiations, but Scherfel refused to answer these questions.
The letter itself, dated March 27, 1991, advises the em-
ployees of the status of contract negotiations, notes that the
letter had been given to the Union prior to its being read on
March 27, asserts that in these five collective-bargaining ses-
sions, there had been tentative agreement on some of the
items but there were still ‘‘open items.’’ The letter states that
for ‘‘economic and business reasons,’’ Respondent proposed
a reduction in paid personal days off, vacation reductions,
and changes in the sick pay practices as well as changes in
break periods. The letter also mentions Respondent’s desire
to have employees share in the cost of hospitalization cov-
erage and its having advised the Union, at the collective-bar-
gaining session of March 26, that any proposed strike might
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Neither the author of the distributed letter (R. Exh. 11) nor the
union business representative was present during the speech (Tr.
548).
be in violation of legal notification requirements relating to
health care institutions.
Testimony of the General Counsel’s witnesses
(a) Lerenda Matthews: Matthews, a nursing aide employed
by Respondent for about 2 years, and a member of the
Union’s negotiating committee, testified that she attended the
payday, March 27, 1991 speech by President Scherfel at 2:30
p.m. in the main dining room. There were 15 nursing assist-
ants present at the conclusion of D.O.N. Long’s staff meeting
and she told them to remain for Scherfel’s talk (Tr. 320). As
above noted, his speech occurred prior to a collective-bar-
gaining session scheduled for that evening. (R. Exh. 11; Tr.
321).
While Scherfel admits that he told the employees in the
speech that he wished that ‘‘we could have remained as one
big family’’ (Tr. 547), a matter not directly or indirectly
mentioned in the written version of this speech (R. Exh. 11),
he denies that he said anything negative or derogatory about
the Union (Tr. 547), and asserts that he did not answer em-
ployee questions on the advice of counsel (Tr. 548).5
Nevertheless, Matthews testified that in this speech,
Scherfel said that the Union was taking benefits from the
employees and that they’d be better off if there wasn’t a
union; that they would then be like a ‘‘family . . . close and
all of that.’’ (Tr. 322.) On her reading the distributed letter
during the speech, Matthews testified that she noted that
whereas, in the speech, Scherfel said that the Union was tak-
ing benefits away from the employees, the letter stated that
management would be taking the benefits away. Matthews
insisted that, in the speech, Scherfel said that the Union
would be taking the benefits away from the employees and
that they would be better off without the Union (Tr. 323).
(b) Inez Mitchell, a nursing assistant, like Matthews, was
present at the March 27, 1991 speech.
Corroborating Matthews, Mitchell testified (Tr. 338–339)
that Scherfel said that the Union was trying to cut the em-
ployees’ vacation time and benefits; that the Union was mak-
ing decisions for the employees and some of their decisions
were that the benefits would be cut; and that the facility was
better off before the Union came in.
Discussion and conclusions
The issues presented are whether President Scherfel made
the above extemporaneous remarks in his speech and thus,
contrary to his testimony, he did not read the speech ver-
batim. These issues, of course, are not new or unique. It is
clear that a party may not rely on a printed document to
shield it from additional verbal remarks, made in a speech
to employees, which do not appear in the document and
which may, indeed, be contrary to the face of the document.
See NLRB v. Overnite Transportation Co., 938 F.2d 815 (7th
Cir. 1991).
The complaint (par. 8) alleges that the Employer violated
Section 8(a)(1) of the Act by telling the employees in that
speech that (1) they were doing better before the Union was
selected; (2) if it were not for the Union the atmosphere at
the facility would be like a family; (3) the Union was trying
to cut vacation time and health benefits; (4) Respondent’s
hands were tied and couldn’t do anything for the employees
now; and (5) Respondent couldn’t answer questions because
of the Union.
The testimony of Matthews and Mitchell shows that
Scherfel told the assembled employees that it was the Union,
contrary to the statements in the printed document, which
was trying to cut employee benefits rather than Respondent.
They both also testified that he told the employees that they
would be better off if there was no union and they were bet-
ter off before the Union came in. Lastly, although Scherfel
admitted telling employees, ‘‘I wish we could have remained
as one big family’’ (Tr. 547), Matthews’ testimony puts this
statement in a more ominous setting: ‘‘if it wasn’t [for] the
Union, we would [be] like a family, like we was, you know,
close and all of that.’’ (Tr. 322.)
Respondent failed to call any witnesses, whether from su-
pervision or otherwise, to support or corroborate Scherfel’s
version of what occurred at the March 27 meeting nor did
it rebut the credibility or veracity of Matthews or Mitchell,
both current employees testifying in the presence of Presi-
dent Scherfel.
Although I take into account the written speech and
Scherfel’s admittedly inaccurate testimony that he stuck to it
verbatim, I am reasonably confident in making a credibility
resolution against Scherfel and in favor of the General Coun-
sel’s witnesses. While my observation and estimation of the
General Counsel’s witnesses (Matthews is a union bargainer)
showed that they could have been mistaken with regard to
what they actually heard, yet in terms of their acuity of ob-
servation and felicity in recollection and articulation, I was
satisfied by their testimony, especially Matthews’ simulta-
neous comparison of the text with the actual speech.
On the other hand, there is President Scherfel’s
uncorroborated testimony of what he said and my observa-
tion of his conduct at the hearing. His testimony was mani-
fested by a glibness which, when coupled with numerous in-
stances of evasive answers, gave rise to an attitude bordering
on smart-aleckiness. While such demeanor itself detracts
from confidence in the witness’ credibility, it was accom-
panied, on at least several occasions, noted on the record, by
open and repeated obstructive conduct. This misconduct, it
became clear, was not based on sudden emotional factors
which carried him away; rather, as I finally concluded at the
hearing, and mentioned on the record, it manifested a pattern
of interference with the proceeding so that facts might not
be found to the detriment of Respondent.
Thus, as early as the cross-examination of the General
Counsel’s principal witness, the alleged discriminatee, Val-
erie Williams, it was necessary to cause Respondent’s attor-
ney to instruct Scherfel to refrain from speaking at counsel
table in such a loud tone as to interfere with the witness and
the General Counsel’s ability to hear the answers (Tr. 239).
Later on the same day, during the cross-examination of a fur-
ther General Counsel witness, Scherfel engaged in the same
conduct and was admonished a second time, with the warn-
ing that he was interfering with the proceeding (Tr. 334–
335). On a third occasion, later in the hearing, Scherfel took
to mocking the actions and speech of the General Counsel,
admittedly mimicking her hand motions, her voice and into-
nations (Tr. 621–622). Lastly, late in the hearing, in order to
further interfere with the General Counsel’s cross-examina-
521CHERRY HILL CONVALESCENT CENTER
6 Respondent conceded that Administrator Gregory Marks, a cor-
porate vice president, is the number 2 supervisor in its hierarchy,
second only to President Scherfel in authority in Respondent’s facil-
ity. He is superior to D.O.N. Long (Tr. 520).
tion, Scherfel again made comments loud enough to interfere
with the proceeding. At that time, the fourth occasion on
which he interrupted the hearing, it was clear to me that
Scherfel was interrupting the hearing attempting to obscure
testimony which might prove damaging (Tr. 798).
In short, when such misconduct is coupled with his
uncorroborated testimony of what he actually said in the
speech and numerous instances of evasive answers, I con-
clude that Scherfel’s testimony was not trustworthy. Indeed,
when measured alongside the testimony of the General
Counsel’s considerably less sophisticated witnesses, together
with their interests and the possibility of error and exaggera-
tion, I have no trouble in concluding that the General Coun-
sel’s witnesses were at least truthful regardless of their acuity
of observation, memory, and articulation. I conclude that
their testimony was credible.
With regard to the March 27 speech, certainly in the ab-
sence of any corroboration of Scherfel’s testimony, I con-
clude that, as alleged, Scherfel told the employees that the
Union was trying to cut employee vacation time and other
benefits; that the facility was better off before the Union
came in; that the employees would be better off if there
wasn’t a union; and that in the absence of the Union the em-
ployees and the employer would have remained a happy fam-
ily. As alleged, I find that collectively these statements vio-
late Section 8(a)(1) of the Act.
With regard to his statements that his hands were tied, I
find that he did not also add that the employer couldn’t give
anything to the employees ‘‘now’’ (as an implied promise
that, in the absence of the Union, the employer would reward
the employees with benefits); and that his statement, if made,
that he could not answer questions because of the Union,
was not uttered. Rather, he refused to answer questions, as
he told the employees, because of the advice of counsel. To
that extent, the allegations of paragraph 8 of the consolidated
complaint should be dismissed. Otherwise, as found, Re-
spondent’s remarks, made in addition to and contrary to the
written distributed letter, violate Section 8(a)(1) of the Act.
2. Administrator Gregory Marks’ April 2, 1991
conversation with Valerie Williams
About 5 days after President Scherfel’s March 27, 1991
speech to the 15 nurses assistants, the alleged discriminatee,
nursing assistant Valerie Williams, and Respondent’s admin-
istrator, Gregory Marks6 had a conversation on the first floor,
near the nurses station (Tr. 26; 513). The balance of the oc-
currence, including the conversation, is in dispute.
Valerie Williams testified that while she was working in
the hall, putting linens in a room, Administrator Gregory
Marks came down the hall and approached her. After initiat-
ing an exchange of salutations, he asked her if she knew
about the next union meeting. As above noted, both Marks
and Williams are members of the negotiating committees.
She testified that she told him only ‘‘no’’ that she knew
nothing about the next meeting. Williams testified that Marks
told her that ‘‘Winnie’’ [D.O.N. Wilhelmina Long] told him
that ‘‘your Union doesn’t tell you all when there’s another
meeting’’ (Tr. 27). She recalled that he then told her that
‘‘without the union in here, we can’t get what we want’’ and
that if ‘‘we didn’t have a union, we’d get what we wanted’’
(Tr. 27, 28). When Williams asked Marks why they could
not get a dollar raise, Marks answered that Respondent
would not give the dollar raise ‘‘because they don’t have to
give it to us’’ (Tr. 27); that the employees were better off
without the Union. She recalled that he remarked that he
heard that all the employees wanted a strike to which she
made no response (Tr. 153).
Gregory Marks testified that rather than his approaching
Williams, Valerie Williams approached him (Tr. 513); that
she asked him when the next union meeting was scheduled
and that he told her that he was not sure (Tr. 513–514). At
this point, according to Marks, Williams began telling him
about problems she was having with the Union and the
Union’s failure to communicate with her. In particular, he
said she told him that the Union did not keep her informed
(Tr. 514). At that time, the parties were involved in collec-
tive-bargaining negotiations and Marks made meeting-room
reservations at the Holiday Inn in Cherry Hill, New Jersey.
Marks testified the he told Williams that she would have to
get her information for the Union (Tr. 516–517).
Marks denied Williams’ testimony: that the employees
could not get anything with the Union present or that the em-
ployees would be better off without a union; or that the em-
ployees could get what they wanted if they did not have the
Union. He also denied any conversation relating to a dollar
raise or any other raise and also denied that their conversa-
tion involved the topic of a strike (Tr. 519).
Discussion and conclusion
My observation of Valerie Williams, contrary to Respond-
ent’s assertion that, inter alia, Williams was a spreader of
false rumors among Respondent’s employees, indicated that,
if anything, she was rather secretive. Based on that conclu-
sion, and from the absence of evidence to show, for instance,
a disarmingly friendly and open relationship between Marks
and Williams, I am unable to conclude that Williams would
approach Administrator Marks and ask him about the forth-
coming collective-bargaining session at which they would
appear for their respective parties. I was also impressed with
the spontaneity of Williams’ testimony that Marks began his
conversation with her by stating that ‘‘Winnie’’ [D.O.N.
Long] told him that the Union doesn’t tell the negotiators
when there is another meeting (Tr. 27). This element of the
conversation was not denied by Marks; but even if it had,
I would nevertheless credit Williams that that is how the
conversation started. If it did start that way, and I believe
that it did, then I credit Valerie Williams’ version of the con-
versation and conclude that, as alleged in paragraph 9 of the
consolidated complaint, Marks, on or about April 2, 1991, in
violation of Section 8(a)(1) of the Act, told Valerie Williams,
in substance, that they would be better off without the
Union; that without the Union, the employees would get
what they wanted and with the Union they could not get
what they wanted (Tr. 27–28).
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Respondent’s personnel manual (R. Exh. 3), addendum 1, subpar.
D., provides, inter alia, both that the employee must punch out and
obtain supervisor approval prior to an employee leaving the building.
The record is uncontradicted that Williams made it a practice of in-
forming nurses aides when she was going out to the car and that
other employees visited their cars in the parking lot for various rea-
sons. Nurses aides were out in the parking lot, from time to time,
smoking, speaking to persons giving them rides, and obtaining arti-
cles from their cars.
8 To the extent Scherfel testified that he merely said ‘‘hello’’ to
Union Agent Rivera, necessarily denying that he asked Rivera about
picketing and rumors of a strike, I do not credit Scherfel’s testi-
mony.
9 The two prior written warnings to which Valerie Williams re-
ferred were dated respectively September 24, 1990 (R. Exh. 8), and
November 26, 1990 (R. Exh. 7). The September 1990 written warn-
ing, signed by Williams’ supervisor, O’Hara, a registered nurse, was
C. Alleged Violations of Section 8(a)(3) of the Act
1. The April 24 suspension of Valerie Williams
As above noted, the nursing assistants worked three shifts
6:45 a.m. to 3:15 p.m.; 2:45 p.m. to 11:15 p.m. and 10:45
p.m. to 7:15 a.m. Those on the 7:15 a.m. to 3:15 p.m. shift
record their medical notes on patient records in blue or black
ink; those on the 2:45 p.m. to 11:15 p.m. shift, in green ink;
on the 10:45 p.m. to 7:15 a.m. shift, in red ink. The parties
are in dispute as to whether Respondent in fact supplied the
pens to the nurses: Valerie Williams testified that Respond-
ent did not; D.O.N. Long testified that she maintained a sup-
ply of these pens in her office. There was no other proof,
other than Long’s testimony, that the employees were either
aware of or actually given these pens by Respondent and cer-
tainly no proof that Valerie Williams knew of or accepted
these pens from Respondent. The issue, as will be seen, is
immaterial.
In any event, on the afternoon of April 22, 1991, on enter-
ing the facility, Williams left her green pen in her car. Real-
izing that she did not have her pen to record notes, she
turned to a nurses aide whose name she did not recall and
told her, as was her practice when she forgot the pen and
left it in her car, that she was going out to her car in the
parking lot. At that time, about 2:45 p.m., there was a shift
change and there were several nurses at the nurses’ desk
when she mentioned her trip to the car to the nurses aide.
She did not tell the nurses at the desk. The distance from the
nurses’ desk station to the front door is about 20 feet; from
the front door to her car was an additional 20 feet (Tr. 39).
Williams then preceded to the car to get her green pen.
While D.O.N. Long (director of nursing) testified that she
maintains a stock of these pens, including green pens in her
office; and that on more than one occasion, to her recollec-
tion, Williams has secured a green pen from her, Williams
testified that the green pen in the car, was her own pen.
Whether Respondent stocked the pens in Long’s office, and
there is no corroboration of Long’s assertion, it is likely that
Williams found a trip to her car, as was her practice, more
convenient that going to Long’s office to secure the pens. As
hereafter noted, Respondent’s assistant director of nursing
(A.D.O.N.), Martha Aslarona knew of Williams’ practice and
never admonished against it. Nurses also saw her do it (Tr.
41).
Although there were two or three nurses at the nurses sta-
tion at the front desk when she informed the nurses aide that
she was going out to her car, Williams testified, without con-
tradiction, that her own supervisor, Dolly O’Hara, had not
yet reported to the nursing home at this time (Tr. 156–157).
Williams merely notified a nurses aide that she was going
out to the car.7
Out in the parking lot while getting her green pen, she met
Charles Rivera, a union representative. She did not know that
Rivera was in the parking lot when she left to retrieve the
pen (Tr. 46), and did not know that Rivera would then give
her some papers for distribution to the other nurses aides.
They spoke for 10 minutes after Williams got the pen.
While Williams was speaking to Rivera, President Scherfel
drove up in his car and had a conversation with Rivera in
Williams’ presence. Scherfel asked Rivera about anticipated
picketing of Respondent’s facility and whether there was
going to be a strike (Tr. 163). Rivera told Scherfel that there
would be no strike.8 Williams remained in their presence for
a few minutes during this conversation (Tr. 44) and then pro-
ceeded back to the building.
Unknown to Williams, President Scherfel had observed her
talking to Union Agent Rivera and drove up to them in the
parking lot to insure that they knew that he had seen them.
Immediately after his conversation with Rivera, using his car
telephone, he contacted the charge nurse in the facility
(whose name he did not recall) and asked where Williams
was. The charge nurse (actually A.D.O.N. Martha Aslarona)
told Scherfel that Williams was in the facility attending pa-
tients. Scherfel told her that Williams was not in the facility
and that she ‘‘happens to be out [in] the parking lot and that
he wanted the charge nurse to document the fact that he had
called; that he had seen Williams in the parking lot; that Wil-
liams was ‘‘obviously’’ not on an approved break; and that
the incident should be documented by the charge nurse and
reported to D.O.N. Wilhelmina Long at the charge nurses’
earliest convenience or as soon as Long came to the facility’’
(Tr. 564–567).
As Williams reentered the facility through the main en-
trance doors, about 20 feet from the nurses desk, she heard
the telephone ringing at the desk and said to the Assistant
Director of Nursing Martha Aslarona, at the nurses desk at
the time, that: ‘‘I bet that’s for me.’’ After hanging up the
telephone, Assistant Director of Nursing Aslarona told Wil-
liams that the telephone call was for Williams, that the caller
was President Scherfel, and that Aslarona had to ‘‘write her
up’’ for being out in the parking lot.
Aslarona, admittedly Respondent’s supervisor and agent,
then left Williams standing at the desk and went into the of-
fice of the director of nursing. There she ‘‘wrote up’’ the in-
cident and telephoned Williams at the desk to come into the
office (Tr. 49). In the office, Aslarona told her that she did
not want to write her up but had to write her up because she
had gone to the parking lot. Williams asked Aslarona what
the effect of this written warning would be in view of prior
written warnings that Williams had received. Aslarona told
her that it should not affect her because the prior warnings
had occurred a long time ago (Tr. 50); that the present warn-
ing would not go against her and that Aslarona knew that
Williams had often gone to her car to get the green ink pen
(Tr. 51). Nevertheless, she told Williams, since President
Scherfel told her that she had to write Williams up, she had
to do it (Tr. 51–52).9
523CHERRY HILL CONVALESCENT CENTER
the result of a nurse and Williams yelling at each other so loudly
as to be distracting. They both refused to stop yelling at each other
and failed to heed Supervisor O’Hara’s direction that they settle their
argument in the nursing office (R. Exh. 8). The November 26, 1990
warning was for ‘‘insubordination; crocheting while on duty.’’ In
this written warning, Williams repeatedly refused to obey an order
assigning her other work due to the departure of a coemployee. (R.
Exh. 7.)
On the other hand, in Respondent’s annual evaluation of Williams’
performance as an employee, rendered on April 8, 1991, 2 weeks
before her April 24, 1991 suspension, above, she was rated consist-
ently a good employee, meeting Respondent’s requirements (G.C.
Exh. 6; Apr. 8, 1991). Director of Nursing Long testified that no
nurses aide ever received consistently excellent evaluations and sel-
dom receives any excellent notations whatsoever. In short, the April
8, 1991 evaluation of Williams, signed by D.O.N. Long, notes that
her attendance, punctuality, attitude, compliance with personnel poli-
cies, dependability, initiative and motivation, knowledge of work,
cooperation, conduct on duty, quality of work, quantity of work,
compliance with instructions of supervisors, etc., were all ‘‘good;
meets requirement.’’ Similarly, her ‘‘overall evaluation’’ was
‘‘good.’’
The next day, April 23, 1991, Scherfel sought out and met
with D.O.N. Long who affirmed that she had received infor-
mation regarding the parking lot incident. Long told Scherfel
that she knew that he was upset; that he had called the
charge nurse; and that the charge nurse said that Williams
was in the building tending to patients when she was not (Tr.
568).
Scherfel then asked Long what her position was on this in-
cident and they discussed the severity of the infraction (Tr.
567). According to Scherfel, Long told him that she thought
that the incident was not a severe one (Tr. 568), but it was
her recommendation nevertheless to suspend Williams. There
was no mention in Scherfel’s testimony of Long having Wil-
liams’ personnel file or telling him that she reviewed the
filed prior to recommending to him that she suspend Wil-
liams. In any event, Scherfel testified that he agreed with
Long’s recommendation for a 3-day suspension and that he
wanted the latter written up (Tr. 568–569).
D.O.N. Long’s testimony supplied a substantially different
version of Scherfel’s participation in the Williams’ suspen-
sion. Long testified that when she came to work in the morn-
ing of April 23, Aslarona gave her a copy of the written
warning which Aslarona had drafted on April 22 (Tr. 680).
After reviewing it, she reviewed Williams’ personnel file for
other disciplinary warnings and problems and then made her
determination of the action to take (Tr. 681). After reviewing
the records in Williams’ file, she testified that she deter-
mined that suspension was in order (Tr. 682). Since Williams
was not working on that shift (Apr. 23), Long removed Wil-
liams’ timecard from the rack, the regular procedure to cause
an incoming employee to visit the director of nursing to in-
quire concerning the lack of a timecard (Tr. 682). Long fur-
ther testified that Williams visited her office later that day
after Williams reported to punch in on the afternoon shift.
They had a conversation in which Long ‘‘counselled’’ Wil-
liams because of the unauthorized break, leaving the facility
and leaving the patients unattended (Tr. 683).
Long testified, however, that it was she who made the de-
cision to suspend Williams because of her prior discussions
with employees about leaving the facility, or their going on
authorized breaks, because patient safety was involved. As
this version on Long’s direct examination demonstrates, there
is clearly no active or even indirect participation in the sus-
pension determination by President Scherfel; indeed, there is
no Scherfel participation whatsoever in Long’s decision to
suspend Valerie Williams. It was not remarkable, therefore,
on cross-examination, when the matter was particularly put
to her, that Long testified not only that it was her decision,
and her decision alone, to suspend Valerie Williams, but that
President Scherfel had nothing to do with the suspension
(‘‘absolutely not,’’ Tr. 714). Scherfel himself, testified that
he had never previously been involved in the discipline of
a nurses aide.
This unexplained contradiction between D.O.N. Long’s
and President Scherfel’s testimony with regard to his partici-
pation in the decision to suspend alleged discriminatee, Val-
erie Williams, not only impacts adversely on Long’s credibil-
ity, showing her testimony to be designed to protect Presi-
dent Scherfel from any participation in a disciplinary action
which is the subject of the General Counsel’s complaints;
but, by the very contradiction highlights President Scherfel’s
active and entirely unique participation in the decision for
suspension. Indeed, if President Scherfel’s testimony is cred-
ited, that he sought out Long concerning her receipt of
A.D.O.N. Aslarona’s written warning, requested Long’s rec-
ommendation and then approved Long’s recommendation, for
suspension, it can hardly be said that President Scherfel did
not participate in the decision to suspend Williams (as Long
testified). Further, to the extent Long’s testimony suggests
that he did not even participate in any discussion regarding
the suspension (‘‘absolutely not’’) is even more suspect. I am
constrained to conclude that Long’s veracity was under-
mined; and that her testimony, understandably constructed to
protect President Scherfel, was designed to insulate him from
his admittedly unique participation in the Williams’ dis-
cipline, which is the subject of the complaint. Yet Scherfel’s
more credible testimony indicates that his anger, noted by
Long, drove her decision; and that his request for Long’s
recommendation and his agreeing with her recommendation
sealed the discipline. On April 24, noting the two prior warn-
ings, Long wrote up a 3-day suspension for the unauthorized
break (G.C. Exh. 3(b)).
Discussion and conclusions
I conclude from the above that the General Counsel has
proved a prima facie case of an 8(a)(3) violation in the April
24, 3-day Williams suspension. There is no dispute that Re-
spondent, at all material times, knew that Valerie Williams
was a union supporter and, indeed, was one of a half dozen
of the 70 unit employees comprising the Union’s collective-
bargaining negotiation committee. I have found, above, that
Administrator Gregory Marks’ April 2, 1991 unlawful con-
versation with Valerie Williams, on the pretext of an ap-
proaching collective-bargaining session date, was redolent
with union animus concerning the futility of Valerie Wil-
liams’ support of the Union and indeed the detrimental effect
of the Union on employee benefits and working conditions.
Independently, I have found, above, that President Scherfel,
himself, in his March 27, 1991 speech to assembled nurses’
assistants, violated Section 8(a)(1) of the Act, placing the
onus and responsibility on the Union for prospective cuts in
vacations, benefits as well as other adverse terms and condi-
tions of employment resulting from unionization and support
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Not only are the unknown circumstances concerning the false
sentence added after Aslarona’s signature on G.C. Exh. 3(a) highly
significant, but the testimony of the dates on which Long drafted her
note memorializing the suspension and, indeed, the dates on which
Williams was actually suspended, are in disarray. The only fact
which appears not in dispute is that Long pulled Williams’ timecard
from the timecard rack and thereafter interviewed Williams on April
23, 1991.
Williams testified that she did not work that day (Apr. 23) but
went home and was recalled to work on Friday, April 26. (Tr. 71–
73.) Long which she drafted but thereafter corrected them to show
that the actual suspension dates were April 24, 25, and 26 and that
Williams returned to work on Monday, April 29. Williams testified
that she was suspended April 23, 24, and 25 and returned to work
on the 26. I cannot resolve the actual dates of suspension but find
that there was a 3-day disciplinary suspension.
11 Long testified that she had never suspended any employee for
being out in the parking lot, but had suspended or terminated several
employees for leaving the building (Tr. 715).
of the Union. Thus, the legal requirements of Respondent’s
knowledge of Williams’ support of the Union and its union
animus are present in this case, indeed some animus directed
at Valerie Williams, in particular. When knowledge and
union animus are coupled with the facts that the suspension
for being out in the parking lot was (1) occasioned by the
presence of Union Organizer Charles Rivera and (2)
Scherfel’s participation in the decision was both angry and
unique, the prima facie case is further supported.
I am also not unmindful of another particularly troubling
matter concerning Williams’ April 24 suspension and her
July 10 termination: the disciplinary memorandum or warn-
ing drafted by A.D.O.N. Aslarona on which both Williams’
suspension and her later discharge were based. The face of
the document contains Martha Aslarona’s signature (‘‘Martha
Aslarona’’ followed by ‘‘RN A.D.O.N.’’). It appeared to be
an odd circumstance, however, to have an additional sen-
tence appearing below her signature which would otherwise
have terminated the document and shown its author (G.C.
Exh. 3(a)). I inquired of Valerie Williams whether the addi-
tional sentence appearing after Aslarona’s signature was on
the document when Williams signed it. That sentence reads:
‘‘Employee had been counseled regarding unauthorized
breaks.’’ Williams testified that that sentence was not on the
document when she signed her name to it (Tr. 222–225). Not
only was the sentence not on there when she signed it, but
she never saw Aslarona add it and did not know how it ap-
peared there (Tr. 226).
D.O.N. Long testified that she had not added the sentence;
that it was not her writing and that it was Aslarona’s hand-
writing (Tr. 708). Because Respondent failed to call Aslarona
as its witness to explain the addition of this sentence to the
disciplinary warning on which both the suspension and later
discharge were based, there is no evidence to explain the ad-
dition of the sentence. Thus we do not know when it was
added and under what circumstances Aslarona decided to
state that Williams had been counseled regarding unauthor-
ized breaks. What makes Aslarona’s failure to appear par-
ticularly significant is Valerie Williams’ uncontradicted testi-
mony (elicited on cross-examination), supported by the
records in her personnel file, that prior to Long’s April 24
disciplinary warning for the unauthorized break, she had
never been counseled or warned or even talked to about un-
authorized breaks prior to that date (Tr. 226). Respondent,
fully apprised of the testimony concerning this post hoc addi-
tion and its apparent falsity, nevertheless failed to procure an
explanation from Aslarona or suggest a reason why respon-
sive testimony was not procured. I therefore am constrained
to conclude that the additional false sentence (‘‘Employee
had been counseled regarding unauthorized breaks’’) was
added by Aslarona after she procured Valerie Williams’ sig-
nature on April 22; and that in view of D.O.N. Long’s fail-
ure to testify that it was on the document at the time that
she reviewed it on April 23 or indeed, when, on April 24,
she drafted her note explaining the 3-day suspension, it was
added even after that. (G.C. Exh. 3(b)).10
In Long’s explanatory note accompanying the suspension
(G.C. Exh. 3(b), she refers to the April 22, 1991 warning as
the ‘‘third warning’’ which Williams received. The other two
warnings in the file are apparently the two 1990 warnings
(R. Exhs. 7 and 8). There is nothing in the file of any other
warning or counseling for an authorized break as the added
sentence on General Counsel’s Exhibit 3(a) suggests. I there-
fore conclude that Aslarona added that sentence after Long
decided on the suspension11 and after the discipline had been
awarded to Williams. While there is therefore no clear date
on which the sentence was added, it becomes extremely ma-
terial to determine that date since that document, showing a
prior discipline for the same activity (G.C. Exh. 3(a)), was
the fundamental basis on which President Scherfel admittedly
discharged Williams on July 10, 1991 (Tr. 402–403). Under
these circumstances, there is present the inference, in view
of Scherfel’s animus toward the Union in general, and Ad-
ministrator Marks’ unlawful remarks to Williams, in particu-
lar, that it may have been added at that time or after the dis-
charge in order to further support that action. Finders of fact
should be extremely sensitive in unfair labor practice litiga-
tion involving credibility disputes, to situations where the
proof affirmatively shows, as here, Respondent’s creation of
false documentation. WordsWorth, 307 NLRB 372 (1992);
Quebecor Group, Inc., 258 NLRB 961, 972 (1981). Even
more so in the presence of a failed obligation to produce a
witness (A.D.O.N. Aslarona) under its control, with knowl-
edge of the facts, where there is a prima facie case of the
witness’ creation of a false document used in the subsequent
discipline of an employee engaged in union activities. See
International Automated Machines, 285 NLRB 1122 (1987).
I also note that nowhere in President Scherfel’s testimony,
concerning his car telephone conversation with the charge
nurse (in which he noted that Valerie Williams was not tak-
ing care of patients but was out in the parking lot) is it sug-
gested that he actually told the nurse that Williams was in
the parking lot talking to Union Representative Rivera. Yet,
in her memorandum (G.C. Exh. 3(a)), drafted at Scherfel’s
directions, Aslarona recorded the fact that Scherfel witnessed
Williams talking to ‘‘Carlos Rivera.’’
Respondent’s records regarding suspensions; 1987–1991
The General Counsel subpoenaed all of Respondent’s
records for the period 1987 through 1991 regarding sus-
pended and discharged employees. In that period, the evi-
dence shows that only two employees were suspended by
Respondent. President Scherfel admitted that he does not get
involved in the discipline of nurses aides and that there were
only two suspensions of employees in that 4-year testified
525CHERRY HILL CONVALESCENT CENTER
that she had mistakenly put dates on the suspension docu-
ment period. Scherfel was involved in neither suspension.
Neither of the suspensions involved employees going to the
parking lot.
Benjamin Greene was suspended for 2 days in April 1991.
In January 1991, he became involved in a loud argument
with A.D.O.N. Martha Aslarona in which he accused
Aslarona of raising her voice when she was merely trying to
make him listen to her regarding his failure to perform an
assignment. When Greene then took an unscheduled break
leaving the floor with only one nurses aide instead of two,
Aslarona decided that he had created a hardship on the floor
and issued him a written warning for a ‘‘bad attitude.’’ On
April 1, 1991, his whereabouts were unaccounted for for ap-
proximately 20 minutes, after being paged several times
without response. He was found to be using the telephone in
the residential section with the patients unattended. It was
this second warning which caused Wilhelmina Long to
record Green’s unsatisfactory work, giving him a 2-day sus-
pension without pay (G.C. Exh. 26). It should be noted that
thereafter, on July 13, 1991, he was given a disciplinary
warning for being in a patient’s room for 1-1/2 hours and
was found to have been on an extended break. He was mere-
ly docked 1-1/2 hours from his pay.
Lucile Bell was suspended on May 25, 1988, for 1 day and
placed on 2 months’ probation because of excessive absen-
teeism (G.C. Exh. 37). Her disciplinary record (G.C. Exh.
37) shows that on February 20, 1988, Bell took a lunchbreak
and left the floor without coverage by other employees. On
April 15, 1988, she received a further verbal warning for ex-
cessive absenteeism with the notation that continued infrac-
tions would read to suspension. About a month later (May
25, 1988), she was suspended for 2 days with 2 months’ pro-
bation. She had been absent on May 20, 1988, and the subse-
quent May 25 warning for excessive absenteeism contains
the admonition that continued abuse of absenteeism would
result in termination.
There is thus no showing that any employee, like Wil-
liams, who went to the parking lot for a work-related pur-
pose (retrieve her pen) was ever suspended. In Valerie Wil-
liams’ case, it is actually unnecessary, however, to meet the
issues of her unauthorized absence from the work floor or
her leaving the building as unlawful acts under Respondent’s
personnel rules or practice. Williams’ uncontradicted and
credited testimony was that Assistant Director of Nursing
Martha Aslarona knew that Williams often had gone to her
car in the parking lot for the green pen and had not written
her up adversely on those occasions. Indeed, Aslarona told
Williams, on April 22, that she was not writing her up of
her own volition, but was directed by President Scherfel to
write her up. Again, Aslarona was not produced by Respond-
ent though it had an obligation to do so.
While it is true that Williams’ testimony is uncontradicted
and credible, I nevertheless draw a further adverse inference
derived from Respondent’s failure to produce Aslarona to
meet a the General Counsel’s evidence of Aslarona’s con-
donation, if not approbation, of Williams’ frequent visits to
her car in the parking lot. I find that Aslarona’s reluctance
to administer an unmerited warning, Scherfel’s insistence that
Williams be written up, his angry initiation of, and unique
participation in, the disciplinary suspension of a mere nurses
aide by D.O.N. Long on the next day (Apr. 23), all in the
light of the General Counsel’s proof of Respondent’s
(Scherfel’s) union animus and Marks’ engaging in unlawful
acts, directed against Williams, demonstrated not only that
the General Counsel proved a prima facie case. I find that
A.D.O.N. Aslarona’s reluctance affects Respondent’s de-
fense, that it suspended Williams solely because she was in
the parking lot in violation of Respondent’s rule against leav-
ing the building. That defense is thereby rendered not suffi-
ciently persuasive under Respondent’s burden of proof of its
affirmative defense imposed in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). I find that Respondent
neither rebutted the prima facie case nor would have sus-
pended Williams even if she had not been a union bargainer.
NKC of America, 291 NLRB 683 (1988).
The uncontradicted evidence is that other employees are
regularly out in the parking lot without disciplinary action.
The fact that there is no specific proof of Respondent’s
knowledge of the activities of these employees does not nec-
essarily support Respondent. The frequency of the employ-
ees’ appearance in the parking lot to obtain chocolates, to
smoke, to speak to their prospective transporters, etc., be-
speak the likelihood that Respondent knew of this practice.
With regard to Valerie Williams visits to the parking lot,
however, there is no question of Respondent’s knowledge.
A.D.O.N. Aslarona had actual knowledge of Valerie Wil-
liams’ repeated visits to the car to retrieve the pen and, as
above noted, if she did not actually approve of that practice,
she necessarily condoned, without discipline of any kind,
Valerie Williams’ activities. Aslarona, at most, regarded Wil-
liams’ repeated leaving the facility to retrieve her pen from
her car as trivial departures from Williams’ duties, not call-
ing into play the disciplinary prohibitions in the personnel
manual, supra. Even this, however, must be viewed in the
light of Williams going to the parking lot not to get candy
but to get her pen—an act in furtherance of her duties. In
the presence of Aslarona’s knowledge of Williams activities,
I am unable to conclude that Respondent was merely indulg-
ing in a harsh, but even-handed, discipline in suspending her.
The two suspensions of record do not support Respond-
ent’s defense under NLRB v. Transportation Management,
supra. Neither is remotely analogous to discipline imposed
for being in the parking lot with the supervisor’s acquies-
cence for prior acts, for a reason associated with Respond-
ent’s business (retrieval of the green pen). Benjamin Greene
was given a written warning for arguing with A.D.O.N.
Aslarona on January 17, 1991, raising his voice to her and
being absent on a lunchbreak which was not authorized. Six
weeks later, on April 1, 1991, he received a 2-day suspen-
sion without pay for using a telephone and not attending too
work, leaving the patients unattended for 20 minutes. Wil-
liams, on the contrary, was retrieving a pen in order to work.
Greene, having been insubordinate to his supervisor, was
using the telephone for 20 minutes for reasons not disclosed
on the record. In short, he was not out in the parking lot re-
trieving a pen so he could record notes on the Respondent’s
records, part of his duties (as did Valerie Williams).
With regard to Lucille Bell, she was suspended for absen-
teeism. This has nothing to do with being out in the parking
lot for a few minutes or trying to retrieve a pen in order to
do her job.
I conclude, therefore, that, in the presence of the General
Counsel’s prima facie case consisting of Respondent’s (1)
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I find not only that Jackson told this to Williams but that, con-
trary to Jackson’s denial, actually saw it.
13 While I conclude that Williams’ prior affidavit to the Board (R.
Exh. 9) impeaches Williams’ testimony on this point, I conclude that
it does not undermine her overall credibility. Again, I do not credit
Jackson’s testimony that she did not see Scherfel and Lopez having
sex and did not mention this to Williams both at 10 p.m. and at
punching out.
14 It is uncontradicted that Williams’ own supervisor was not
present (Tr. 104). This would explain why Williams had the con-
versation with LPN Pat Cooper, the apparent charge nurse at the
time. As above, noted, President Scherfel admitted that LPNs, part
of Respondent’s disciplinary mechanism (Tr. 397–398), are its ‘‘first
line supervisors’’ (Tr. 399).
union animus, (2) knowledge of Valerie Williams’ union ac-
tivities, (3) the immediate write up and subsequent unique
suspension flowing from her being out in the parking lot at-
tempting to retrieve a green pen to perform Respondent’s
business, an action condoned if not approved by Aslarona,
(4) there meeting without prior arrangement, a union agent,
(5) seen by President Scherfel in doing so, Scherfel, by his
unique personal intervention, having her suspended on the
next day by D.O.N. Long, Respondent violated Section
8(a)(3) and (1) as alleged. Again, not only did A.D.O.N.
Aslarona know of, and at least condone Williams’ repeated
prior visits to the car to retrieve her green pen in order to
do her work, but, according to Williams’ credited and
uncontradicted testimony, Aslarona admitted that, con-
sequently, she was drafting the adverse memorandum not of
her own volition but only at the direction of President
Scherfel. The testimony of President Scherfel, undermining
Long’s contrary version, shows his unique participation in
the discipline of a nurses aide. I do not credit her testimony
concerning Respondent’s motivation in the suspension. Be-
cause Respondent’s records reveal no suspensions for an em-
ployee being out in the parking lot in order to effectuate em-
ployer business functions, but rather for excessive absentee-
ism and disappearing from the work floor while talking on
the telephone; or for being on the telephone for 20 minutes
after arguing with the assistant director of nursing, these are
not suspensions which show equal or parallel discipline as
that accorded to Williams. Respondent has not shouldered its
burden of proof to show that it suspended Williams for being
out in the parking lot, sacrificing her obligation to patients.
In the face of proof that Williams’ union activities were a
motive in Respondent’s suspension of Williams on April 24,
Respondent has not met its burden to prove that the suspen-
sion would have occurred even without the presence of the
prohibited motive. See NLRB v. Transportation Management
Corp., supra; NKC of America, supra. The suspension vio-
lates Section 8(a)(3) and (1) of the Act.
2. The discharge of Valerie Williams; July 10, 1991
a. July 9, 1991
Certainly as early 1988, and perhaps at all material times,
Respondent has had problems with maintaining coverage of
the work floor because employees do not take their
lunchbreaks or their workbreaks at assigned times (G.C. Exh.
37, page 3, Lucille Bell warning, February 20, 1988). Each
nurses aide receives a half hour lunch or dinnerbreak and a
15-minute workbreak in each 8-hour shift. Ordinarily, the as-
signed mealbreak and workbreak (‘‘first’’ or ‘‘second’’ meal
or work break) appear on each employee’s daily shift assign-
ment sheet (G.C. Exh. 37, ibid). Without contradiction, Wil-
liams credibly testified, however, that the shift work assign-
ment sheets sometimes do not contain the designated work
and lunchbreaks. Where, however, her assignment sheets des-
ignated the breaks, Williams testified that she took breaks at
those times; where the assignment sheets omitted the des-
ignated breaks, Williams would take her lunchbreak or the
workbreak whenever she felt she could and notified the
charge nurse that she was doing so (Tr. 134–136). She regu-
larly took her breaks in the residential unit, visiting with her
friend, Betty Jackson, also a nurses aide. She was never cau-
tioned against this practice.
After 9 p.m. on July 9, 1991, about 2 hours before the end
of her shift, Williams told a nurses aide at the desk that she
was going on her 15-minute break and made her way to the
residential unit, as usual, to speak to her friend, Betty Jack-
son. To reach the residential unit, Williams took a short cut
through the physical therapy room. The lights in the physical
therapy room were off but the light in the hallway illumi-
nated the interior of the physical therapy room.
When Williams opened the door, she observed, through an
opening in the protective curtain at the entrance of the room,
President Scherfel and controller Linda Lopez having ‘‘sex’’
on the bed in the room. She closed the door, apparently un-
noticed, and returned to her duties on the work floor (Tr.
100). About 15 minutes later, Betty Jackson came to Valerie
Williams’ work station (Tr. 252) and told her that she had
come from the physical therapy room herself (Tr. 247); and
told her that she herself had seen them having sex.12 Wil-
liams swore that, at that time, she did not tell Jackson that
she too had seen Lopez and Scherfel having sex in the phys-
ical therapy room. I do not believe this testimony. Williams’
investigatory affidavit (R. Exh. 9) taken by the Board, indi-
cates that she told Betty Jackson, at or around 10 p.m. that
she had seen Lopez and Scherfel having sex. I conclude on
the basis of my observation of the witnesses, all the testi-
mony concerning her affidavit (Tr. 247–266) and the testi-
mony of Betty Jackson (Tr. 837 et. seq.), hereinafter as-
sessed, that Williams not only exchanged these confidences
with Jackson at 10 p.m., but as Respondent’s own witness,
Betty Jackson corroborates, they again spoke of it at 11 p.m.
or thereafter when Williams admittedly told Jackson that she,
and others, had seen them having sex. This later conversation
occurred, contrary to Jackson’s testimony, when both Jack-
son and Williams were punching out.13
Punchout time for Williams was 11:15 p.m. Ordinarily, a
few minutes before punchout time, she would go to the park-
ing lot to warm up her car before punching out and leaving
for home (Tr. 103). On this July 9 occasion, a few minutes
before Williams’ punching out, the LPN on duty, Pat Cooper
(apparently the acting charge nurse), saw Williams leaving
the facility and asked her to discover why a new nurses aide
had just left the facility (Tr. 103). Williams told LPN Cooper
that she was going to her car in the parking lot and would
try to discover why the new nurses aide had left (Tr. 104).
LPN Cooper was never called by Respondent to deny Wil-
liams’ testimony.14 It stands unrebutted. Williams left the fa-
cility and entered the parking lot.
Robert Reeves, the maintenance supervisor, approached
her in the parking lot. Reeves, who spent a great deal of time
527CHERRY HILL CONVALESCENT CENTER
in the parking lot (Tr. 106), had been sitting in his car with
a female employee from the activities department (Tr. 107).
Reeves emerged from his car (Tr. 244) and told Williams
that a ‘‘guy’’ had told both him and ‘‘John,’’ a housekeeper
employee, that he had seen Scherfel in the physical therapy
room having sex. (Tr. 245). Williams testified that Super-
visor Reeves told her that when this ‘‘guy’’ reported this fact
to him and ‘‘John,’’ Reeves sent ‘‘another guy in there to
get something and the other guy hollers and says, hey, some-
body’s in here screwing, and he left’’ (Tr. 245). Williams
specifically denied telling Reeves that she had seen them as
well (Tr. 246). I credit the denial.
Reeves corroborated Williams to the extent of admitting
that at about 10:45 p.m., on July 9, he had a conversation
with Williams in the parking lot concerning the ‘‘sexual ac-
tivities going on’’ (Tr. 789). Reeves, however, contradicting
Williams, said that Williams told him that she had seen the
sexual activities and that Betty Jackson had seen them too
(Tr. 789–790). Contradicting Williams in that conversation,
Reeves testified that he had already confronted Lopez and
Scherfel and found it impossible that what Williams de-
scribed would have occurred (Tr. 790). Reeves testified that
Williams, in response, said: ‘‘Well, I know what I saw and
Betty [Jackson] knows what she saw’’ (Tr. 791). Reeves spe-
cifically denied that he had seen or even had knowledge of
Scherfel and Lopez having sex in the physical therapy room
(Tr. 791).
Testimony of Respondent’s witnesses, Reeves, Lopez
and Scherfel; the alleged earlier incident of
July 9, 1990
Reeves testified that as early as 7:30–8 p.m. on July 9
while he was working in the shower room on the first floor
he heard a commotion outside. When he went into the hall-
way to investigate the commotion, he found people talking
just outside the room about 200 yards from the physical ther-
apy room. He recognized Williams’ voice. Although Wil-
liams was speaking to only two other people, Reeves could
not recall or identify who the other two people were. He tes-
tified that as he approached them, the other two people
walked away (Tr. 806). When he asked Williams what the
commotion was about, she told him, according to his testi-
mony, that she had seen Lopez and Scherfel engaging in sex-
ual activities (Tr. 783; 807). He testified that he told her: ‘‘I
have to see this for myself’’ (Tr. 807).
Reeves testified, and Lopez corroborated (Tr. 424–432)
that at about 7:55 p.m., Reeves, laughing, approached her
and told her that it was amazing how fast she could change
her clothes. Lopez asked what he was referring to and
Reeves inquired whether she heard what was going around:
didn’t she know that Lopez was supposed to be in the phys-
ical therapy room with Scherfel? He told Lopez that Wil-
liams had been in the physical therapy room, witnessed what
had occurred, and was ‘‘ spreading it throughout the facil-
ity.’’ When Lopez told him that Scherfel, at that moment,
was in the physical therapy room getting a massage from the
physical therapist, Lopez refused Reeves’ invitation imme-
diately to enter the room and tell Scherfel of this occurrence.
Lopez testified, however, that shortly thereafter (Tr. 427,
429), Scherfel emerged from the physical therapy room and
approached them while they were standing near the adminis-
trative offices, a short distance from the physical therapy
room (Tr. 430). Reeves then told Scherfel that there was a
rumor going around that he was in the room with Lopez.
Scherfel denied this, saying that he was in there getting a
message from the physical therapist and that Lopez had
never been in the physical therapy room. They then all joked
how incredible the entire story was (Tr. 432).
Scherfel, corroborating Lopez and Reeves, testified that
from 6:30 to 8 p.m., he was in the physical therapy room
getting a therapeutic massage for stress management from
‘‘our physical therapist’’ (Tr. 571). The physical therapist,
Doreen, is 23 to 24 years old, an employee of a contractor
providing physical therapeutic services to Respondent’s pa-
tients. Scherfel is married. Lopez is married, separated from
her husband, and engaged in a contested custody controversy
with her husband concerning her child. Scherfel testified that
the stress massage was conducted with the fully clothed ther-
apist while he himself was in his underwear with a towel
over his genital area. The massage included his thighs up to
his crotch, but the towel always remained in place (Tr. 573).
The massage also included the use of lubricating oil (Tr.
576).
In any event, Scherfel testified, corroborating Reeves and
Lopez, that one of them asked him whether he had heard
what was ‘‘going around’’ the facility and they told him,
first debating with each other who would tell him, that the
rumor was that he was having sex with Lopez. When he
asked Reeves how he had come to this information, Reeves
told him that Williams was ‘‘telling everybody else on the
floor’’ (Tr. 576). Scherfel said that he, Lopez, and Reeves
then ‘‘joked it off’’ (Tr. 576). Scherfel said that it was ab-
surd; Lopez said it was ridiculous; and Reeves said he
thought so as well. According to Scherfel, he then went
home because he was full of oil from the massage (Tr. 576).
Credibility resolutions
I deem it provident to resolve the questions whether there
was a 7:30 to 8 p.m. conversation between Reeves and Wil-
liams and a subsequent conversation among Reeves,
Scherfel, and Lopez at about 8 p.m. regarding the alleged
prior conversation between Williams and Reeves in the hall-
way. Based in large part on the testimony of Respondent’s
own witness, Betty Jackson, I find that a preponderance of
credible evidence fails to show that such conversations oc-
curred: neither between Williams and Reeves between 7 and
8 p.m. in which Williams allegedly told Reeves that she had
seen Lopez and Scherfel having sex in the physical therapy
room; nor the later conversation among Lopez, Reeves, and
Scherfel at about 8 p.m. Independent of the testimony of Re-
spondent’s own witness, Betty Jackson, separately analyzed
hereafter, I would credit the testimony neither of Reeves,
Lopez, nor Scherfel on their oaths.
Robert Reeves
I was immediately struck by what appeared to me Reeves’
powers of exaggeration, at least insofar as distance is con-
cerned. While it is possible that he does not know the dif-
ference between ‘‘yards’’ and ‘‘feet,’’ I found that his testi-
mony could not account for distances (Tr. 803; 813). I also
found it significant that while he heard a commotion outside
the shower room in which he was working, and although he
might well have recognized Williams’ voice, as he testified,
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it struck me as highly improbable that he could discover,
while in the shower room, that it was Williams who was
causing the commotion rather than the other two unidentified
individuals with whom she was engaged in conversation and
commotion. Moreover, I was not impressed by his failure to
recall who the other two people were. His denial merely of
an inability to recall their names does not suffice. His failure
to recall whether they were nurses aides or other employees
of the hospital who could have been identified and perhaps
subpoenaed to corroborate his testimony was noteworthy.
Independent of his demeanor and testimony, I would not
credit any of his testimony because, at the time he testified,
he was the defendant in a criminal prosecution brought by
the State of New Jersey concerning his unlawful possession
of a syringe. The complaining party in the criminal prosecu-
tion is Respondent. Considering the obvious leverage which
Respondent can exercise over Reeves and his testimony, in-
cluding the ability to manipulate or withdraw the criminal
charge on favorable testimony, I do not credit his testimony.
When linked to the demeanor and credibility defects other-
wise described, and balancing his demeanor and credibility
against Williams, I have no hesitation in not crediting him.
Linda Lopez
Lopez has the obvious desire, as I saw her sitting at coun-
sel table with Scherfel, to give testimony protective of
Scherfel and her own job. Putting aside, however, the moral
(regardless of any legal) problem of fornication and adultery
with Scherfel, even in this progressive and enlightened age
and environment, Lopez has a particular self-interest in
avoiding an accusation that she was engaged in immoral sex-
ual activity of the kind described. Although Lopez could not
suggest any reason why Williams, with whom she was not
on unfriendly terms, would spread such a malicious and false
rumor against her (Tr. 442), and in spite of the outward ap-
pearance of everybody joking about the matter (according to
Reeves’, Scherfel’s, and her testimony), she admitted to a
highly important personal reason for contradicting the alleged
sexual activity: at the time of her testimony, she was begin-
ning a custody hearing over her daughter against her hus-
band; and certainly proof of the existence of sexual activity
with Scherfel ‘‘if it had gotten out in general public could
have severely damaged me’’ (Tr. 442). Moreover, she testi-
fied that President Scherfel was also upset due in part to his
knowledge that this rumor of sexual activity would be very
damaging to Lopez (Tr. 443). In view of Lopez’ self-interest
in preserving her job, her loyalty to Scherfel, preservation of
the appearance of morality, and because of the particular ne-
cessity of defending against this rumor because of her cus-
tody proceeding concerning her daughter, I do not credit
Lopez in her testimony concerning the existence of a 7:30–
8 p.m. conversation with Reeves and Scherfel.
In addition, her testimony that on the morning of July 10
at least 20 to 25 facility personnel, in a half hour period,
spoke to her about the rumored sex incident was highly sus-
picious. Because Respondent had not produced a single wit-
ness to support that testimony, I find that testimony to be in-
credible (Tr. 438).
Steven Scherfel
I have already alluded to the reasons for discrediting much
of Scherfel’s testimony. Although the record, as will be fur-
ther developed, shows further reasons to discredit him, I also
discredit his testimony concerning participating in this 8 p.m.
conversation with Reeves and Lopez.
I therefore find and conclude, contrary to the testimony of
Reeves, Scherfel, and Lopez, that Valerie Williams did not
cause a commotion outside the shower room at 7:30 p.m.;
did not tell Reeves at that time that she had seen Scherfel
and Lopez in the physical therapy room engaged in sexual
intercourse; and that there was no conversation at about 8
p.m. on July 9 among Scherfel, Reeves, and Lopez (concern-
ing the alleged 7:30 p.m. conversation between Williams and
Reeves) relating to Reeves’ report that Williams had seen,
and was spreading a rumor concerning, a Lopez-Scherfel
sexual liaison in the physical therapy room. I find that nei-
ther conversation occurred.
Testimony of Betty Jackson
As above noted, some time around and after 11 p.m., Wil-
liams had gone to the parking lot to warm up her car and
there had a conversation with Reeves concerning Reeves’ re-
port to her that he and ‘‘John,’’ a handyman, had been told
by an eye witness that Lopez and Scherfel were having sex
in the physical therapy room. Williams testified that she did
not respond to Jackson or, in any event, tell him that she had
seen the same thing. Reeves’ testimony contradicted her. He
said that she told him, at that time, again that she and Betty
Jackson had seen the sexual act and that Reeves told her that
he had checked on it and that it was impossible. It is ulti-
mately unnecessary to resolve the question of whether Wil-
liams admitted to Jackson that she had seen the same thing
during that 11 p.m. conversation. If it were necessary to re-
solve the issue, I would credit Williams and discredit Reeves.
Betty Jackson, a Respondent witness, employed by Re-
spondent from time to time since September 1977 was, at the
time of her testimony, working for another employer and on
leave-of-absence from Respondent. She testified, however,
that she expected her interim employment to cease and that
she expected to return to work for Respondent (Tr. 835).
Although Betty Jackson at first insisted that she had only
one conversation with Williams on the evening of July 9 (Tr.
818), she thereafter admitted that she had more than one con-
versation with her (Tr. 837–838). At first Jackson testified,
contrary to Williams’ testimony, that their second conversa-
tion was not when they were both punching out and leaving
the facility (Tr. 837) but then testified that she could not
‘‘recall right off hand’’ when it occurred (Tr. 837). As will
appear below, it is apparent that the second conversation nec-
essarily occurred after Williams’ conversation with Reeves in
the parking lot at 11 p.m. I therefore conclude, contrary to
Betty Jackson’s equivocal denial or lack of recollection, that
her second conversation occurred after 11 p.m. and therefore
at or about the time that she and Williams were punching
out, i.e., at about 11:15 p.m. as Williams otherwise credibly
testified.
The substance of Betty Jackson’s credible testimony was
that in a conversation with Williams at about 9:45 p.m. (spe-
cifically recalled because she was on her way to obtain insu-
529CHERRY HILL CONVALESCENT CENTER
15 On cross-examination, Jackson testified, agreeing with Williams’
prior testimony that she, like Williams, sometimes did not have a
specific assigned lunchbreak (Tr. 821), and repeated, again, that the
conversation occurred during Williams’ lunchbreak, not her own (Tr.
821).
16 Although Jackson’s rendition of what Williams told her was not
as particularized as Williams’ testimony (that Reeves had sent some-
body else to observe Scherfel and Lopez in the sex act, and it was
not Reeves himself who had seen it), the Betty Jackson testimony
on both conversations, placed in context is reliable enough concern-
ing what was said and certainly the timing of her two conversations
with Williams.
lin for a patient, Tr. 817–818), while she was in the hall
going toward the dining room, she met Williams who told
her: ‘‘I have something to tell you’’ (Tr. 819–820). When
Jackson asked what it was, Williams told her: ‘‘I just caught
Steve Scherfel and Linda Lopez in . . . the . . . therapy
room having sex’’ (Tr. 819). Of particular significance, Jack-
son testified both that Williams told her at 9:45 p.m. that she
had just seen this during her lunchbreak (‘‘during that time’’;
Tr. 819–820), and that Williams was relating this event to
Jackson during this same Williams’ lunchbreak period which
continued through the time of this conversation (Tr. 820).
The significance of this Jackson testimony, at the end of the
hearing, concerning when Williams saw the sex act, was ap-
parent, as hereafter noted.15
For the third time, again on cross-examination, she insisted
that the conversation occurred on Valerie Williams’
lunchbreak (Tr. 821–822). Again, she insisted that the con-
versation was at about 9:45 p.m. (Tr. 822.)
Contrary to Williams’ testimony, Betty Jackson, however,
absolutely denied telling Williams that she had seen Scherfel
and Lopez having sex in the therapy room. She denied it and
explained that she did not see any such thing (Tr. 822–823).
She testified that she never saw Scherfel and Lopez having
sex nor did she tell anybody that she did (Tr. 823). She also
testified that she could not remember any other conversation
with Williams that evening (Tr. 823).
The significance of Jackson’s testimony follows. On cross-
examination, Jackson testified that she generally leaves the
facility at around 11:15 p.m. (Tr. 836), sometimes meets and
speaks with Williams on those occasions (Tr. 836–838), but
denied having a conversation with her at the time they were
leaving on the night of July 9 (Tr. 837). She then changed
her testimony to say: ‘‘I can’t recall right off hand’’ whether
she had that conversation at the time of punching out (Tr.
837). However, she did finally admit that she had a later
conversation, i.e., after 9:45 p.m., with Williams but not
when she was leaving the facility (Tr. 837). In any event,
however, and of particular significance, Betty Jackson admit-
ted that in some conversation with Valerie Williams on that
night, she recalled that Williams told her that she and Super-
visor Robert Reeves had talked; that Reeves had told her that
he had seen Lopez and Scherfel; and that ‘‘John’’ had seen
them, too (Tr. 838). It is apparent, therefore, that contrary to
Betty Jackson’s original denial, she not only had more than
one conversation that evening with Williams, but the second
conversation, of necessity, had to have occurred after Wil-
liams’ conversation with Reeves in the parking lot no earlier
than 10:45 p.m. (according to Reeves’ testimony concerning
the time of the conversation which he admitted occurred).
Notwithstanding that Williams placed it at perhaps 15 min-
utes later, at about 11 p.m., Williams could not have told
Jackson, as Jackson’s own testimony shows, that Reeves told
her that he had ‘‘seen Linda and Steve,’’ and that ‘‘John’’
had seen them too, before the parking lot conversation be-
tween Reeves and Williams. Thus, on the record before me,
I conclude that Jackson and Williams had more than one
conversation on the evening of July 9, 1990; that the first oc-
curred at about 9:45 p.m. and the second around or after 11
p.m.
In the first conversation between Jackson and Williams,
when Jackson was trying to obtain insulin for a patient, at
about 9:45 p.m., I conclude that, as Jackson credibly testi-
fied, contrary to Williams’ denial, Williams told her that she
had just seen the sex act occurring during Williams’ own
lunchbreak which lunchbreak was continuing even at the
time of this 9:45 p.m. conversation. Since Williams, certainly
at that time, would have had no motive, discernable on this
record, in providing Jackson, her friend, with a false time
when she saw the sex act; and since Jackson, corroborating
Williams, testified that Williams told her that she had just
seen it during her lunchbreak which lunchbreak was continu-
ing at the time of this 9:45 p.m. conversation, I conclude that
Jackson’s testimony, corroborating Williams, specifically un-
dermines and discredits the mutually corroborated testimony
of Reeves, Scherfel, and Lopez to the extent that their testi-
mony supports the existence of a Reeves-Williams conversa-
tion at about 7:30 or 8 p.m. concerning Williams’ observa-
tion of Scherfel and Lopez in the physical therapy room at
that time (close to 8 p.m. on July 9).
In short, there would be no reason for Williams, at 9:45
p.m. on July 9, to tell her friend, Betty Jackson, that during
the contemporaneous lunchbreak she had just seen Scherfel
and Lopez engaging in sex in the physical therapy room if
she had actually seen them 2 hours before, at 8 p.m., doing
the same thing. Again, there was no reason, on this record,
for Williams to have misstated the time of her observation
to her friend Betty Jackson. In addition, there is no reason-
able question of the accuracy of Jackson’s recollection of her
first conversation because her recollection was focused on
her obligation to get insulin for a patient at about 9:45 p.m..
Similarly, Jackson testified clearly that Williams said, in sub-
stance, that she had just seen the sex act during her lunch
period which was continuing. Such spontaneous and mutually
corroborative testimony, especially from Jackson, a witness
called by Respondent, seriously undermines the credibility of
Reeves, Lopez, and Scherfel concerning the existence of the
7:30 or 8 p.m. conversation during which Williams allegedly
told Reeves that she had just seen Scherfel and Lopez in the
physical therapy room having sex. There is no suggestion,
much less proof, of Lopez and Scherfel being in the physical
therapy room at both 7:30 and 9:45 p.m.
Moreover, Jackson’s corroborative testimony supports Wil-
liams: that it was Reeves who told her that he and ‘‘John’’
had seen Scherfel and Lopez engaged in sex as well.16 Jack-
son, of course, could not have heard the substance of what
Williams told her in the second conversation until Williams
had concluded her conversation with Reeves out in the park-
ing lot at 11 p.m. Jackson’s credited testimony necessarily
demonstrates not only that their two conversations with
friend Williams on the night of July 9, but that the second
conversation necessarily occurred after the 11 p.m. parking
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Again, I regard Lopez’ testimony that at least 20 to 25 super-
visors and nonsupervisors inquired of this matter to be false and ex-
travagant. There are only 110 employees employed in the entire fa-
cility and it would appear that not more than half were working on
the first of three shifts. Like Reeves’ exaggeration of distances,
which would make Respondent’s facility greater in size than two or
three football fields (600 feet in length from one internal point to
another), I regard Lopez’ testimony concerning the number of em-
ployees inquiring of the incident to be vastly exaggerated, if there
were any at all.
18 This Lopez testimony was incredible when given and painful on
rereading. How could Scherfel on the morning of July 10, be puz-
zled concerning ‘‘where the root of this [rumor] was’’ (Tr. 443),
when, on the evening of July 9, not more than 12 hours before, Su-
pervisor Reeves allegedly told him (and Lopez) that Valerie Wil-
liams had seen them in the sex act in the physical therapy room and
‘‘was spreading it throughout the facility’’ (Lopez, Tr. 427) and
‘‘that Valerie Williams was telling other employees on the floor that
this was going on’’ (Scherfel, Tr. 575).
lot conversation between Reeves and Williams because
(Jackson testified) Williams told her that Reeves and ‘‘John’’
had seen them too. This Jackson testimony, of course, nec-
essarily discredits Reeves. Jackson testified that Williams
said that Reeves told her that he and ‘‘John’’ had also seen
the sex act. Williams had no motive to lie in that second
conversation. To the extent Reeves testified that he never
told Williams he had observed them having sex or suggested
that he had not sent a ‘‘guy’’ to confirm that fact, I do not
credit him. While I have not credited Williams’ denial of
telling Jackson what she had seen in the physical therapy
room, to the extent Respondent argues that Williams is a ma-
licious, habitual liar, neither my observation of her, nor the
record, supports this argument.
b. The July 10 discharge
Scherfel, and particularly Lopez, testified that on the
morning of July 10, many of the supervisory and other per-
sonnel (Tr. 438–439) of the facility approached them and
kidded them concerning what they were doing in the facility
the previous night (Tr. 437–438). Indeed, Lopez testified that
all of the department heads, over 20 personnel in total, came
to her and asked her about the incident. Not only Adminis-
trator Gregory Marks and Director of Nursing Long allegedly
visited her and asked her about the incident, but also ‘‘every-
one else in Administration’’ (Tr. 437–438). As above noted,
she testified that at least 20 to 25 people came to her and
told her that she and Scherfel were having sex the previous
night. Although Respondent’s vice president and adminis-
trator, Gregory Marks, was included in those visiting Lopez
to inquire about the sex incident, and although Marks testi-
fied in the proceeding, he did not corroborate Lopez’ testi-
mony concerning this incident. Most particularly, he was not
even called to corroborate Lopez regarding his own inquiry.
More important, he was silent concerning the source of any
rumor he heard or from whom he heard that Scherfel and
Lopez were having sex in the physical therapy room. Al-
though Respondent named several additional inquirers, it
failed to call a single witness named by Lopez and Scherfel
to corroborate this extraordinary number of prurient persons
who visited Lopez inquiring about Lopez’ rumored sexual
activities on the night before.17 Of course, they did not iden-
tify the source of the rumor.
In one instance, where Lopez cited a named inquirer
(Linda Hojnowski), Lopez asked her who told her, but
Hojnowski allegedly did not give the name, telling Lopez
only that she had heard it on the floor and that everyone was
talking about it (Tr. 437). I do not credit such testimony.
That same morning, Lopez expressed her concern to Presi-
dent Scherfel on the effect of the rumors on her litigation
concerning custody of her daughter (Tr. 442). Scherfel told
her that he shared her upset because of the damaging nature
of this situation should it become general public knowledge.
Scherfel told her that it was also defaming his character and
that he wanted to find out ‘‘where the root of this was’’ (Tr.
443).18
Apparently following this July 10 alleged conversation be-
tween Scherfel and Lopez concerning Scherfel’s desire to
discover the ‘‘root’’ of the problem, Scherfel sought out
D.O.N. Long and told her of the rumors going around con-
cerning Lopez and himself having sex and that Williams had
started the rumor. Scherfel told Long that he wanted a meet-
ing so that he could discuss the matter with Williams (Tr.
694–695). Consistent with prior practice, Scherfel directed
Long to pull Williams’ timecard, which would cause Wil-
liams to see Long and ultimately to have the meeting. When
Williams arrived for her July 10 afternoon shift at about 2:45
p.m., she found her timecard missing from the rack, sought
out D.O.N. Long (Tr. 695), and Long told her that Scherfel
had asked her to set up a meeting. When Williams told Long
that she wasn’t going to have a meeting with Scherfel (Tr.
696), Long told her that they had to have the meeting and
that she should come into Long’s office to await Scherfel’s
arrival. They entered the office and waited for Scherfel to ar-
rive. At Williams’ request, Long paged Betty Jackson and
Betty Jackson arrived shortly after Scherfel (Tr. 697). Except
for Williams’ uncontradicted and credited testimony concern-
ing parts of the conversation in the office that afternoon re-
lating to Williams’ union activities, and certain of Scherfel’s
testimony concerning his first knowledge of Williams’ being
out in the parking lot at 11 p.m. on the previous evening,
the circumstances of this afternoon on July 10 were not in
substantial dispute. Long told Williams that the meeting was
being called because Scherfel wanted to talk to Williams
about the sex matter. Thus, present in the the office was
Scherfel, Long, Betty Jackson, and Williams.
Scherfel opened the meeting by asking Williams about the
rumors, about Williams making statements that Scherfel and
Lopez were in the physical therapy room having sex (Tr.
111, 697; ‘‘what was this stuff that was going around that
[Williams] was saying.’’ Williams told him that there wasn’t
anything going around. Scherfel said that he had had proof
that Williams was going around telling people that she had
found him in the physical therapy room having sex with
Linda Lopez (Tr. 111). Williams told him that she had not
told anyone of that (Tr. 112). At this point, when Scherfel
said that he had proof that Williams was going around telling
everybody that he and Lopez was having sex, Williams told
him to bring in his proof (Tr. 112). When Scherfel continued
to speak about the sex incident, Williams did not answer him
and told him that she did not have to answer him (Tr. 112).
Williams, however, did tell him that if he did bring his
‘‘proof’’ through witnesses, she would tell the witnesses to
their faces that they were liars because she never opened her
531CHERRY HILL CONVALESCENT CENTER
19 I discredit Long’s testimony that Williams said that she could
go on a break when she wants to and where she wants to (Tr. 699).
Had Williams made such a remark, I am confident that Scherfel
would have testified concerning it and the insubordinate tone that it
carried. There was no such Scherfel testimony.
20 As above noted, Scherfel testified that after Williams denied
spreading the rumor (Tr. 590) and before Reeves was summoned to
the room (Tr. 590–591), and after Scherfel told her that Reeves was
going to appear and tell them all what Valerie Williams had said to
him (Tr. 591), he asked her who had started the rumor if she had
not (Tr. 595). According to Scherfel, she then told him that she had
heard the rumor from ‘‘Bob Reeves in the parking lot’’; and when
he asked her when, she said at 10:45 in the previous night. Scherfel
then asked her: ‘‘what are you doing in the parking lot at 10:45 in
the evening?’’ Williams allegedly answered that she was on break
and that Scherfel responded that he did not believe that breaks were
permissible at that time; and that once again she had violated the
policy with regards to breaks. It was after this, according to Long’s
(Tr. 700–702) and Scherfel’s testimony, that Reeves entered the of-
fice. As I heard Reeves’ testimony, as above-indented, he was not
only answering the question of when his conversation was, but vol-
unteered the importance of why Scherfel asked him when. He was
underlining for ‘‘e,’’ through the above-indented voluntary, addi-
tional explanation, the fact that, when Scherfel spoke to Reeves in
Long’s office, it was only through Reeves that Scherfel discovered
that Valerie Williams had been in the parking lot at 10:45 p.m. on
an allegedly unauthorized work break: ‘‘He [Scherfel] did ask me,
because he did not have prior knowledge, having left this facility the
previous night around 8:00 or 8:30 or whenever they left.’’ Aside
from the unexplained problem of how Reeves knew that ‘‘they left’’
at 8 or 8:30 p.m., I was immediately struck, at the hearing, and
again on rereading the transcript, by Reeves’ explaining to me the
reason that Scherfel had asked him when, on the previous night, he
had spoken to Valerie Williams in the parking lot. Reeves’ volun-
teered explanation to me was that Scherfel asked him that question
‘‘because he did not have prior knowledge [that Williams was in the
parking lot].’’ (Tr. 794.) The gravamen of Reeves’ testimony thus
is that he was the source of Scherfel’s knowledge. But Long testified
that Williams had already admitted this to Scherfel before Reeves
entered the office (Tr. 698–700). Scherfel did not realize the potency
of Williams’ admission until after D.O.N. Long told him he was
mistaken in his accusation against Williams for patient abuse. When
Reeves thereafter repeated that Williams was in the parking lot,
Scherfel dismissed Reeves, recalled Williams, seized on Williams
being out in the parking lot, and discharged her for that reason.
Again, after Williams told Scherfel she would call his witness to her
Continued
mouth about the incident (Tr. 114). Scherfel made no re-
sponse.
At this point, Williams asked Long if she had called the
meeting and Long said she had not called the meeting. Wil-
liams then asked Long if she could leave and Long said she
could leave. Williams then left the office and went to the
nurses’ desk. At this point, Scherfel came out of the office,
into the hall ‘‘hollering’’ (Tr. 114), and told Williams to get
back in the office because it was he, Scherfel, who called the
meeting (Tr. 115). He then added: ‘‘Since you want to be
on the committee board, you’re going to be on my commit-
tee board’’ (Tr. 115).
Williams then returned to the office with Scherfel, telling
him: ‘‘First of all, the Union don’t have nothing to do with
this. Its between me and you, no one else’’ (Tr. 115).
Scherfel was still ‘‘hollering’’ at Williams and Williams
said: ‘‘Wait a minute. First of all, you don’t holler at me.
I’m not your wife and you’re not my husband or my mother.
My mother don’t even holler at me.’’
At this point, Scherfel told her that her personnel records
showed that she had abused a patient. Williams told him to
bring in the file which showed a record of patient abuse (and
added that, if a record showing patient abuse was produced,
it would be a forged record (Tr. 115–116)). Scherfel sent for
the file. While awaiting the file, Williams asked Long wheth-
er she had ever heard anyone say that Williams had abused
a patient. D.O.N. Long said that she had never heard of such
a thing and, when the file arrived, she asked Scherfel to ex-
cuse Jackson and Williams and have them leave the room
while she spoke to Scherfel privately (Tr. 116). Jackson and
Williams then left the room. Scherfel sent for Reeves and
had the conversation described below. Later, after Reeves
left, Williams reentered the office and saw Scherfel inves-
tigate the file. Long told Scherfel that there was no record
of Williams having abused a patient. Scherfel apologized to
Williams.
During the course of the conversation, as described below,
Williams told Long and Scherfel that she had gone out to the
parking lot, talked to Bob Reeves out there, and that Reeves
told her of the sex incident. Scherfel asked her what she was
doing out in the parking lot because that wasn’t her break
time. He told her it was an unauthorized break and Williams
told him that she had gone out to her car (Tr. 699).19
Scherfel admitted that he assumed that Williams’ visit to the
parking lot was an unauthorized break. Williams apparently
failed to tell him of her conversation with and notification
to LPN Pat Cooper.
Thus, it was when Valerie Williams earlier told Scherfel
to bring in his proof of Williams as the source of the rumor,
that Scherfel testified that he was prepared to do that and
told her that Bob Reeves was going to come down to their
meeting and tell them all what Williams had told him the
previous night. Scherfel said that he would not be that stupid
to have sex with an employee in an unlocked room. Williams
told him that it was not her concern; what he did was his
own business and that she had not told anybody of any sex-
ual activity. It was then that Scherfel asked her whether, if
she did not start the rumor how did she hear of it, and she
told him that Reeves had told her in the parking lot at 10:45
p.m. the prior night. It was at this point that Scherfel said
that she had once again violated company policy with regard
to taking breaks.
At this point, Reeves knocked on the door and entered the
office (Tr. 597).
Reeves testified that when he entered Long’s office, he
found Long and Scherfel alone there (Jackson and Williams
had been sent out while Long and Scherfel examined her file
for the patient abuse record); that Scherfel asked him if there
were rumors about him and Lopez having sex; when Reeves
answered that there were, Scherfel asked from whom did he
hear the rumors and Reeves told him it was from Valerie
Williams. Reeves then testified that he recalled nothing else,
but, responding to a further question recalled that Scherfel
did ask him when he had spoken with Williams. Reeves tes-
tified:
He did ask me, because he didn’t have prior knowl-
edge, having left the facility the previous night around
8:00 or 8:30 or whenever they left . . . . I told him we
were talking out in the parking lot last night. . . . (Tr.
793–794.)20
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rumor-mongering ‘‘a liar,’’ Scherfel did not permit Williams to con-
front Reeves (Tr. 598); and it was immediately after Reeves left
Long’s office that Williams and Jackson were permitted back in the
office and Scherfel told Williams that she was going to be dismissed
for the repeated infraction of an unauthorized break (Tr. 598). De-
feated on ‘‘patient abuse,’’ Scherfel jumped on the next available
basis: ‘‘unauthorized break,’’ to discharge Williams. He thus seized
on Reeves’ repetition of what Williams had already admitted. This
is the stuff of pretext NLRB v. J. Coty Messenger Service, 763 F.2d
92 (2d Cir. 1985) (varying explanations for termination suggests pre-
text).
21 The termination notice lists Williams admission that she had
been in the parking lot at 10:45 p.m. on July 9, 1991; left her pa-
tients under the care of unknown nursing assistant and went, out to
her car; that on March 22, 1991, she had been counseled and sus-
pended for 3 days for a similar offense at which time she had been
warned that a further offense would require termination. In sum,
Scherfel wrote that: ‘‘for leaving her assigned patients and ignoring
her previous warning and suspension, Valerie Williams is termi-
nated.’’
22 Reeves testified that he had long heard rumors concerning
Scherfel and Lopez and recalled telling Williams that he believed
‘‘everybody at the facility is aware of rumors about Steve and Linda
Lopez since the time that I got there . . . in September 1990.’’ (Tr.
809–810.)
Scherfel then permitted Reeves to leave without bringing
Williams into the office to confront him.
In any event, as noted, Reeves left. Immediately as Jack-
son and Williams were permitted back in the room, D.O.N.
Long told Scherfel that he was mistaken in accusing Wil-
liams of having been previously disciplined for patient abuse
and that another nursing assistant had been involved in the
matter (Tr. 596, 700). When Williams returned, Scherfel told
her: ‘‘I made a mistake; Long told me you were not involved
[in patient abuse]’’ (Tr. 700). Long testified that at this point,
Scherfel returned to the problem of discussing Williams’
having been out in the parking lot on an unauthorized break
(Tr. 700). Scherfel and Long then testified that Scherfel told
her that she had broken the same rule before, had been sus-
pended before and that this indicated the necessity for termi-
nating Williams because of her being on an unauthorized
break which put patients in jeopardy (Tr. 598; 701).
Scherfel then directed Williams to follow him to Adminis-
trator Marks’ office and there he wrote up the dismissal form
with an accompanying explanation (G.C. Exhs. 4(a) and
(b)).21
After he presented Williams with the termination notice,
he asked her if she had any questions and when she told him
that she did not, he told her that he felt bad ‘‘because when
[Valerie Williams] is working, she is an excellent nursing as-
sistant, and that it was a shame that, because she did not fol-
low the rules, that I was forced to terminate her’’ (Tr. 598).
Scherfel testified that the reasons he discharged Williams
were no different than those reasons which appear on the ter-
mination notice (G.C. Exhs. 4(a) and (b)). In particular, when
asked whether the rumors which Williams allegedly spread
played any part whatsoever in the decision to terminate her,
Scherfel answered:
The rumors did play a part in the sense that they
made me irritated and angry, and Valerie Williams gave
me the hook . . . to terminate her because she was out
in the parking lot.22 [Emphasis added.]
Discussion and Conclusions
a. The prima facie case
There can be no dispute that Respondent had knowledge
of Valerie Williams’ support for the Union and, indeed, her
position as a member of its collective-bargaining negotiation
committee. With regard to union animus, I have found that
Respondent’s president, Steven Scherfel, 3 weeks before Re-
spondent unlawfully suspended Valerie Williams, in his
speech to at least 15 of Respondent’s nursing assistants, vio-
lated Section 8(a)(1) of the Act by telling them, inter alia,
that they had been doing better before the Union was se-
lected; that the Union was trying to cut their benefits; and
that but for the Union, the atmosphere at the facility would
be like a family. I have also found that, as alleged, in early
April 1991 (Tr. 513), Administrator Marks, in violation of
Section 8(a)(1) of the Act, told Williams, in order to discour-
age her from supporting the Union, that the employees could
not get anything with the Union in the facility; that they
would be better off without the Union; and they would get
what they wanted without the Union. Vice President Marks
is the supervisor ranking in corporate authority immediately
beneath Scherfel, Respondent’s chief executive officer at the
facility. I find that Scherfel’s generalized unlawful statements
and Marks’ subsequent unlawful statements, directed particu-
larly at bargaining committeewoman Valerie Williams, dem-
onstrate not only Scherfel-inspired union animus, but union
animus focused on Valerie Williams as a representative on
the union bargaining committee who regularly faced Gregory
Marks as her Respondent counterpart on the bargaining com-
mittee.
Any doubt with regard to the strength of President
Scherfel’s own conscious resentment of Valerie Williams’
position as an unswerving union supporter and, indeed, as a
member of the Union’s bargaining committee, may be found
in the undenied and credited Williams’ testimony. In the July
10, 1991 discharge interview itself, in the heated conversa-
tion in the hallway or while reentering D.O.N. Long’s office,
President Scherfel, ‘‘hollering’’ at Williams, said:
Valerie get back in the office because I’m the one
[that] called the meeting. . . . Since you want to be on
the [Union negotiating] committee board, you’re going
to be on my committee board.
Equally undenied is Williams’ further credited testimony
(Tr. 115) that she answered Scherfel, returning to the office:
‘‘Wait a minute. First of all, the Union don’t have nothing
to do with this. Its between me and you, no one else.’’
This undenied testimony demonstrates that, in the midst of
the discharge interview itself, Scherfel, boiling over, ex-
pressed specific resentment concerning Williams’ status as a
union bargaining agent. Whether viewed separately or in
conjunction with his March 27 generalized unlawful expres-
sion of union animus and Gregory Marks’ later singling out
Williams for a personalized expression of union animus, this
outburst in the discharge interview against Williams’ status
as a union bargaining committeewoman is decisive. It nec-
essarily supports the inference that her status as a bargaining
committeewoman, conduct clearly protected under Section 7
and Section 8(a)(3) of the Act, was not only ‘‘a motivating
factor’’ in Scherfel’s decision to discharge Williams, thus
533CHERRY HILL CONVALESCENT CENTER
creating a prima facie case, Inland Steel Co., 257 NLRB 65,
68 (1981), enfd. 681 F.2d 819 (7th Cir. 1982), but, alone,
is ‘‘especially persuasive evidence that a subsequent dis-
charge of the employee is unlawfully motivated,’’ Turnbull
Cone Baking Co. v. NLRB, 778 F.2d 292, 297 (6th Cir.
1985), cert. denied 476 U.S. 1159 (1986). The outburst in the
discharge interview itself eliminates, for all practical pur-
poses, the alternative defense to rebutting the prima facie
case: that Williams would have been discharged regardless of
her union activities. NKC of America, 291 NLRB 683
(1988).
The fact that D.O.N. Long testified (Tr. 704–795) that she
did not ‘‘remember him mentioning the Union at all’’; that
any mention of a committee or someone being on a commit-
tee was ‘‘not to [her] knowledge’’; and that the Union was
not mentioned ‘‘during the entire time that I was present’’
(Tr. 705), indicates either that she heard no mention of the
‘‘committee’’ or ‘‘Union’’ because the Williams-Scherfel
conversation was out in the hall; or because the exchange
was delivered with such acrimony, as the disputants were re-
turning to her office, that she reasonably did not hear them
during the ‘‘hollering.’’ If her veracity was involved, bearing
in mind her protective attitude, I would not credit either her
lack of recollection or her failure to be present at the time
the words were used. More significant than D.O.N. Long’s
lack of recollection and the greater probability that she did
not hear the exchange because these words were yelled out
in the hall, is the fact that President Scherfel failed to deny
Williams’ testimony that this conversation occurred.
I am constrained, therefore, to conclude, on the basis of
my independently crediting Williams on the basis of my ob-
servation of her demeanor, on President Scherfel’s failure to
deny her testimony, and on D.O.N. Long’s equivocal testi-
mony concerning the event, that General Counsel proved a
prima facie case: that ‘‘a motivating factor’’ causing Re-
spondent, on July 10, 1991, to terminate Williams’ employ-
ment was of her support of, and her participation in, the bar-
gaining activities of, the Union. Such a factor in the termi-
nation causes the termination to be prima facie in violation
of Section 8(a)(3) and (1) of the Act, as alleged. Wright
Line, 251 NLRB 1083 (1980).
b. The defenses; veracity
I have credited Jackson and discredited Williams’ denial
of telling Jackson at 10 p.m. on July 9, that she had just seen
Lopez and Scherfel having sex. There is no evidence that
Williams spread the rumor later through Jackson or directly
by telling others. Reeves’ and Scherfel’s testimony showing
Williams as telling ‘‘everybody’’ is not credited. Lopez’ tes-
timony, of 25 persons telling her of the rumor, presented the
opportunity to have a single such person testify that Williams
was the source of the sex incident rumor. No such person
was produced.
As a more general matter, however, in viewing the credi-
bility of Respondent’s witnesses Scherfel, Lopez, and
Reeves, it is difficult, on the basis of this sizable record, to
underestimate their credibility. Williams, herself, was not a
model of probity. D.O.N. Long initially favorably impressed
me with calm, straightforward demeanor and therefore her
credibility. It was only after considerable testimony that I
found that, particularly in her absolutely firm contradiction of
Scherfel’s testimony concerning Scherfel’s role in unlawfully
suspending Williams in April 1991, she was simply protect-
ing his (and her own) interest and less than credible. I have
elsewhere ascribed her motive as that of protecting her em-
ployer and, indeed, perhaps protecting her own job. Simi-
larly, I initially found Betty Jackson to be a credible witness
although I do not credit her testimony that, in neither their
July 9, 10 p.m. conversation or in their post-11 p.m. con-
versation, did she tell Valerie Williams that she had seen
Lopez and Scherfel in flagrante. I also do not credit her
recollection insofar as she at first denied having a further
conversation with Williams (after Williams’ 11 p.m. con-
versation with Reeves in the parking lot). If Jackson, on this
record, had any intention of returning to employment with
Respondent, her denial of having seen Lopez and Scherfel in
the very act and her reticence in discussing conversations
with Williams (stating that she had seen them in flagrante),
while incredible, is entirely understandable. See NLRB v. J.
Coty Messenger Service, supra (former employee’s ability to
regain job depends on remaining in employer’s ‘‘good
graces’’).
Hundreds of pages of testimony were devoted to the ques-
tions of Lopez and Scherfel engaging in sexual activity and
Williams’ participation, indeed her initiation, in spreading the
rumor of Scherfel and Lopez being engaged in illicit sexual
activity on Respondent’s premises on July 9, 1991. It is dif-
ficult to believe, on this record, that President Scherfel failed
and refused to rest the rationale for the Williams’ discharge
entirely on the basis of his good-faith belief (which is never-
theless not supported in this record) that she initiated and, in
any case, substantially participated in the spreading of an un-
founded rumor of his engaging in sexual activity with Lopez.
As a matter of law, even if Scherfel were proved to be incor-
rect in his conclusion that Williams was the source of the
rumor, it might well have been at least arguable that this le-
gally innocent rationale could survive Board scrutiny and
meet the burden placed on Respondent, in the presence of a
prima facie case, to convince the trier of fact that Respond-
ent would have terminated Williams even in the absence of
her position as a union bargaining committeewoman. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transpor-
tation Management Corp., supra; Inland Steel Co., supra;
Klate Holt Co., 161 NLRB 1606, 1612 (1966).
In the end, however, Scherfel insisted that the reasons for
his discharge of Williams appeared on the termination notice
which he drafted (Tr. 602; G.C. Exhs. 4(a) and (b)); and that
the rumors of illicit sexual activity which Williams allegedly
initiated, while they irritated him and made him angry, mere-
ly ‘‘gave [him] the hook . . . to terminate her because she
was out in the parking lot’’ (Tr. 606). As Scherfel insisted
that the reason for the discharge was that Williams, contrary
to Respondent’s rules, was in the parking lot, having aban-
doned her patients for that period, I will not substitute my
judgment for his judgment as to what his best defense is.
The Board has long frowned on administrative law judges at-
tempting to justify their own rationalization of the evidence
on theories of defense which a respondent refuses or fails to
advance. Inland Steel Co., supra; Edwards Restaurant, 305
NLRB 1079 fn. 1 (1992), ‘‘Even if those incidents did occur,
[neither of the employer’s witnesses] testified that these were
the reasons for [the] discharge.’’ Moreover, the Board has es-
tablished the rule that merely because an employer could
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have discharged an employee for breach of a work rule, the
real issue is whether the employer would have discharged the
employee for the particular conduct alleged, Structural Com-
posites Industries, 304 NLRB 729 (1991); Equitable Gas
Co., 303 NLRB 925 (1991).
Bearing in mind, therefore, that the instant prima facie
case consists, inter alia, of a termination interview itself red-
olent with personalized union animus by the chief executive
officer against the employee being discharged, Turnbull Cone
Baking Co, supra; WordsWorth, 307 NLRB 372 (1982), and,
bearing in mind, that in the presence of such an unrebutted
prima facie case, the burden then shifts to the employer,
NKC of America, supra, to demonstrate that it would have
terminated Williams even in the absence of her protected
conduct, under the Wright Line rule. (Wright Line, supra;
Transportation Management Corp., supra.) The following
factors persuade me that Respondent has not successfully
shouldered that burden:
(a) Respondent’s Records; Unique Discipline: The General
Counsel argues that no employee had ever been discharged
for being out in the parking lot. Of 29 terminations between
1987 and 1991 (from records subpoenaed by the General
Counsel) there is no indication of any employee having been
terminated for being out in the parking lot. While there is
no question that Respondent’s work rule prohibits employ-
ees’ leaving the building during shift hours for other than fa-
cility business and requires them to punch out and gain prior
approval from the supervisor (addendum 1, p. 18, R. Exh. 3,
personnel manual), none of the more than two dozen termi-
nations, in the period 1987 to 1991, reflects a termination be-
cause of being out in the parking lot or being out of the
building for a few minutes. Rather, the terminations are
based on excessive absenteeism (Keither Cuff), walking out
of the facility and never returning to work (Denise White),
resignations (Rhonda Council), poor work habits (Sally
Easterling), sleeping in a patient’s bed (Stacy Dixon), sleep-
ing on the job (Danielle Dickerson), and similar malfeasance.
This is not to say that in the presence of the peculiar and
specialized employee disciplinary problems of a health care
institution, any employee is privileged to simply leave her
patients and the building especially on personal business as
did Valerie Williams on the evening of July 9 (warming up
her car). I conclude, consistent with Respondent’s argument,
that an unauthorized absence from duty, necessarily leaving
the care of patients, especially in the face of a lawful prior
unheeded warning, would ordinarily constitute grounds for a
lawful discharge. Here, however, the prior warning was not
lawful and Williams, with LPN Cooper’s knowledge and ap-
proval, was in the parking lot, inter alia, looking for a miss-
ing nurses aide. This was not dissimilar to A.D.O.N.
Aslarona’s view of Williams being in the parking lot to re-
trieve her pen.
(b) Respondent’s knowledge, condonation, or approval of
Williams’ conduct leading to suspension and discharge: Re-
spondent failed to call as its witness its Assistant Director of
Nursing Martha Aslarona. I need not draw an adverse infer-
ence for this failure since Valerie Williams’ credible testi-
mony is undenied with regard to her conversation with
Aslarona at 3 p.m. on April 22, 1991. After that conversa-
tion, Aslarona, at the direction of President Scherfel, and
contrary to Aslarona’s practice and judgment wrote her up
adversely for being in the parking lot. I have already found
that Aslarona’s knowledge of Williams’ repeated going to
her car in the parking lot, failing to independently reprimand
or discipline her for those acts, together with her statement
of a preference not to do so except for the intervention of
President Scherfel, demonstrates condonation or approbation,
or an interpretation of the personnel manual rule (against
being outside the building except with the approval of the su-
pervisor) implying tacit permission to do so. Respondent may
not now be heard to complain that on the evening of April
22, 1991, Valerie Williams violated its rules against leaving
the facility without supervisory permission. In addition, the
number of employees regularly out in the parking lot, ac-
cording to Williams’ uncontradicted testimony implies Re-
spondent knowledge and tacit acquiescence. Inez Mitchell,
for instance, during worktime visits her car in the parking lot
to get candy two to three times per week (Tr. 340–341).
Under these circumstances, a 3-day suspension, as I have
found, for such conduct demonstrates unique punishment and
disparate treatment.
Similarly, when Williams went to her car on July 9, LPN
Cooper knew of Williams destination and not only failed to
admonish against it, but directed her to look for the missing
aide.
(c) Doctoring the records: On the other hand, Respond-
ent’s failure to call A.D.O.N. Aslarona as a witness requires
an adverse inference because of her failure to explain her
‘‘doctoring’’ of the document she drafted on the evening of
April 22 which led both to Williams’ suspension of April 24
and the discharge of July 10, 1991. Williams’ uncontradicted
and credited testimony (Tr. 225) that the final sentence on
Aslarona’s adverse writeup was not on the document when
she signed it, and D.O.N. Long’s testimony that the hand-
writing of that last sentence (‘‘Employee had been coun-
selled regarding unauthorized breaks,’’ G.C. Exh. 3(a)) was
Aslarona’s, raises the questions when and why Aslarona
placed it there. The uncontradicted and credited Williams’
testimony and Respondent’s own records, in evidence, dem-
onstrate that the final sentence was a false statement because
Williams had never been counseled regarding unauthorized
breaks prior to April 22, 1991. The subsequent addition of
this false statement on the April 22 Aslarona memorandum
denotes that Williams was already a repeat offender concern-
ing unauthorized breaks. Since this document played a sig-
nificant part in, and was a basis for, her July 10 discharge,
according to both Scherfel’s testimony and his memorandum
drafted at the discharge interview (G.C. Exhs. 4(a) and (b)),
it follows that a ‘‘doctored’’ document was used and was a
motivation for the discharge of July 10. As might be ex-
pected, the Board does not view with favor defenses based
on documents that have been ‘‘doctored’’ or ‘‘tampered
with’’ which form a basis for subsequent discipline of em-
ployees. Compare WordsWorth, supra, with Quebecor Group,
258 NLRB 961, 972 (1981). To base a discharge on a prior
unlawful discipline and a doctored document makes the dis-
charge unlawful. Quebecor Group, Inc., supra; Davis Elec-
trical Constructors, 291 NLRB 115, 133 (1988).
(d) I have already found that Respondent, with knowledge
of Williams’ repeated visits to her car in the parking lot, im-
posed unexpected and disproportionately severe discipline on
Williams in April in suspending her for 3 days. A.D.O.N.
Aslarona’s response to Williams’ repeated acts demonstrated
either condonation, permission, or an interpretation of the
535CHERRY HILL CONVALESCENT CENTER
rules concerning leaving the facility not unfavorable to Wil-
liams’ conduct. Moreover, the testimony of D.O.N. Long and
Scherfel demonstrates that they never heard of an employee
being disciplined for being out in the parking lot. Lastly,
Williams’ uncontradicted and credited testimony is that at the
end of the termination interview on July 10 she told Scherfel
that she was incredulous that he was going to terminate her
for going to her car while ‘‘everybody else goes to their car’’
(Tr. 302; 303). Williams further testified that Scherfel did
not address this question or attempt to deny that he was ac-
cording her severe discipline when other employees engaged
in the same conduct without discipline. He merely com-
plimented her as an employee and said that he had to ‘‘let
her go’’ because she broke the rules (Tr. 303–304). Scherfel,
if this discipline was evenhanded, was obliged to deny Wil-
liams’ assertion that she was being singled out for unique,
severe discipline.
(e) Pretext: ‘‘Hooks’’ and False Testimony: I was im-
pressed with Scherfel’s testimony that it was Valerie Wil-
liams’ admission (during the discharge interview) that she
had been out in the parking lot at 10:45 p.m. that provided
him with the ‘‘hook’’ to discharge her. Again, it is signifi-
cant that Williams admitted this to Scherfel before Reeves
entered the room, and before Scherfel accused her of patient
abuse. In the presence of a prima facie case, the necessity
for Scherfel to find a ‘‘hook’’ on which to peg the discharge,
like looking for ‘‘some reason’’ to discharge an employee,
quite reasonably gives rise to an inference of pretext and un-
lawful motivation, e.g. Independent Stations Co., 284 NLRB
394 (1987). Scherfel expressly denied that he fired Williams
for initiating or spreading the sex rumor. On the basis of
above-cited Board precedent, Structural Composite Indus-
tries, supra; Edwards Restaurant, supra; Equitable Gas Co.,
supra, and since Scherfel was searching around for a reason
to discharge her, having abandoned ‘‘patient abuse,’’ after
failing to confront her with Reeves (although he threatened
to bring in Reeves to show that she was the source of the
rumor), Scherfel’s overall conduct shows that Williams’
being out in the parking lot was a pretext. Williams had al-
ready admitted being out in the lot with Reeves and Scherfel
ignored the admission, preferring to accuse her of patient
abuse as the ‘‘hook’’ to discharge her. When that ‘‘hook’’
collapsed, and Reeves thereafter repeated to Scherfel that
Williams had been out in the parking lot, Scherfel jumped
on it as a new ‘‘hook.’’
In addition to the ‘‘hook’’ pretext and with both the sus-
pension and discharge for being in the parking lot accom-
panied by supervisor knowledge and acquiescence that Wil-
liams was not on a frolic, there are the following facts,
which underine the bona fides of the defense:
There was a false statement (that Williams had been coun-
seled for unauthorized breaks) appended to the otherwise un-
lawful suspension memorandum of April 24, 1991, the addi-
tion of which remains clouded because of Respondent’s fail-
ure to explain it through calling its supervisor, A.D.O.N.
Aslarona.
There is D.O.N. Long’s false testimony that Scherfel
played no part in the suspension of Williams. There is
Lopez, quoting Scherfel, having Scherfel seeking the source
of the spread of the rumor when Reeves allegedly told them
both, 12 hours before, that it was Williams who was the
source of the rumor of sexual activity. There is Betty Jack-
son’s testimony—Respondent’s witness— demonstrating and
corroborating Williams’ truthful testimony: that in a con-
versation between Williams and Jackson necessarily after
their first conversation of 9:45 p.m., at a time when Williams
had no motivation to invent a story, Williams told her that
Reeves told her that he had seen Lopez and Scherfel engaged
in sex and that ‘‘John’’ had seen them too (Tr. 838). Con-
trary to Reeves testimony, he had no 7:30–8 p.m. conversa-
tion with Williams in which Williams said she had seen
Lopez and Scherfel having sex.
Under these circumstances, in an analysis of the false testi-
mony of and certain admissions by Respondent’s witnesses,
undenied testimony of the General Counsel’s witnesses, Re-
spondent’s failure to call other witnesses, and the reasonable
inferences to be drawn therefrom, it is clear that Scherfel
having abandoned ‘‘patient abuse,’’ returned to Williams’
being in the parking lot as a pretext to discharge her. The
real motive for the discharge must lay elsewhere. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). I specifically do not credit Respondent’s defense that
Scherfel discharged her because she was out in the parking
lot on an unauthorized break. He suspended her on April 24
because he saw her in the parking lot speaking to, and re-
ceiving literature from, union agent Rivera. He discharged
her on July 10 on a trivial pretext because, as he yelled, of
his underlying resentment against Williams being on the
Union’s bargaining committee.
CONCLUSIONS OF LAW
1. At all material times, 1115 Nursing Home and Hospital
Employees’ Union, a Division of 1115 Joint Board (the
Union), has been the exclusive certified collective-bargaining
representative of a unit of certain employees of Respondent
within the meaning of Section 9(a) of the Act.
2. By suspending on April 24, 1991, and discharging on
July 10, 1991, its employee, Valerie Williams, because she
engaged in union and other protected activities, and in order
to discourage employees from engaging in such activities,
Respondent has unlawfully discriminated against her and has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
3. Respondent, on March 27 and April 2, 1991, in an ef-
fort to discourage them from supporting the Union, by telling
its employees that (a) they were doing better before the
Union was selected; (b) if it were not for the Union the at-
mosphere at the Cherry Hill facility would be like a family;
(c) that the Union was trying to cut their vacation time and
health benefits; (d) that they could not get anything with the
Union present in the facility; (e) that they would be better
off without the Union; and (f) that they would have what
they wanted without the Union, Respondent violated Section
8(a)(1) of the Act.
4. Respondent has not committed any other unfair labor
practices.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act,
I shall recommend to the Board that it order Respondent to
cease and desist and to take certain affirmative action to ef-
fectuate the policies of the Act. In addition to posting notices
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
24 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
which will prevent the repetition of Respondent’s independ-
ent violations of Section 8(a)(1) in the statements of Presi-
dent Scherfel and Administrator Gregory Marks, I shall rec-
ommend that Respondent expunge from its files the April 24
suspension memoranda, directed to Valerie Williams, and all
reports and other documents concerning such suspension; and
also to expunge from its records all memoranda, reports and
other documents dealing with her July 10 discharge. I shall
also recommend that Respondent notify Williams, in writing,
that this action has been taken and that those documents will
not support any further discipline against her. Furthermore,
I shall recommend that Respondent offer to Valerie Williams
immediate and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority and any other rights and
privileges previously enjoyed, and to make her whole for any
loss of earnings and benefits suffered because of the unlaw-
ful 3-day suspension on or about April 24 through 26, 1991,
and because of her unlawful termination commencing July
10, 1991, less any net interim earnings, to be computed in
the manner established by the Board in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, Cherry Hill Convalescent Center, Inc.,
Cherry Hill, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminating
against its employees in order to discourage them from sup-
porting 1115 Nursing Home and Hospital Employees Union,
a Division of 1115 Joint Board, or any other labor organiza-
tion, or because its employees engage in activities protected
by Section 7 of the Act.
(b) Telling employees that they were doing better before
the Union was selected; that if it were not for the Union the
atmosphere at the Cherry Hill facility would be like a family;
that the Union was trying to cut employee vacation time and
health benefits; that they could get what they wanted without
the Union; that they could not get anything with the Union
present in the facility; and that the employees would be bet-
ter off without the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Valerie Williams immediate and full reinstate-
ment to her former position, or if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to her seniority or other rights and privileges previously en-
joyed, and make her whole, with interest, for any loss of
earnings and benefits she may have suffered as a result of
her unlawful suspension of April 24 and unlawful termi-
nation of July 10, 1991, in the manner set forth in the section
of this decision entitled ‘‘The Remedy.’’
(b) Expunge and remove from its files any memoranda,
records, or other references to the unlawful Valerie Williams
suspension of April 24, 1991, and the unlawful Valerie Wil-
liams discharge of July 10, 1991, and notify Valerie Wil-
liams, in writing, that this has been done and that these dis-
ciplinary actions will not be used against her in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Cherry Hill, New Jersey, copies
of the attached notice marked ‘‘Appendix.’’24 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by Respondent’s authorized rep-
resentative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure 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 Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge, suspend, or otherwise discipline
employees because they engage in union or concerted activi-
ties for the purposes of collective bargaining or other mutual
aid or protection in the exercise of their rights under the Na-
tional Labor Relations Act.
WE WILL NOT discourage employees from supporting 1115
Nursing Home and Hospital Employees Union, Division of
1115 Joint Board, (or any other labor organization), by tell-
ing them that they were doing better before the Union was
selected, that if it were not for the Union, the atmosphere at
the Cherry Hill facility would be like a family, that the
Union was trying to cut their vacation time and health bene-
fits; that they could not get anything with the Union present
at the facility, and that the employees would be better off
without the Union or would get what they wanted without
the Union.
537CHERRY HILL CONVALESCENT CENTER
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer to Valerie Williams immediate, full, and
unconditional reinstatement to her former position of em-
ployment or, if that job no longer exists, to a substantially
equivalent position without prejudice to her seniority or other
rights or privileges; and WE WILL make her whole with inter-
est, for any wages or other benefits she may have lost as a
consequence of our unlawful April 24, 1991 suspension of
her and our unlawful July 10, 1991 discharge of her.
WE WILL notify her that we have removed and expunged
from our files any reference to her unlawful suspension and
discharge and that these memoranda of discipline will not be
used against her in any way.
CHERRY HILL CONVALESCENT CENTER, INC.