Garrison Valley Center, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1979

246 N.L.R.B. 700 (N.L.R.B. 1979)

I).t:(ISIONS )1: NAII()IONA. I.ABOR REL.AIIONS BOARD
Garrison Valley Center, Inc. and District 1199E. Na-
tional Union of Hospital and Health Care Employ-
ees, Retail, Wholesale, Department Store Union,
AFI,-CIO. Cases 5-CA-9185 and 5 CA-9342
December 4, 1979
DECISION AND ORDER
BY CIIAIRMAN FANNING AND) MlMBiRS JENKINS
ANI) MURPHY
On July 6. 1979. Administrative Law Judge Frank
H. Itkin issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions of' the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent.
Garrison Valley Center, Inc., Garrison. Maryland. its
officers, agents, successors, and assigns. shall take the
Respondent has excepted to certain credibility findings made bs the Ad-
ministrative aw Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibilitl unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Prodrlt. Inc.. 91 NI.RB 544
(1950). enid 188 F.2d 362 (3d (ir. 1951). We have carefully examined the
record and find no basis bor reversing his findings.
(Chairman Fanning would dismiss the 8(a)(5) allegations tf the complaint
inasmuch as the successor. at the outset, made clear by letter of its Counsel to
the Union that it was not adopting the predecessor's labor contract. but that
it would bargain with the Union. including over provlsiln fr a grievance
arbitration procedure. In fact. in that same letter of Decemher 19. 1977 it
submitted a contract proposal based upon the predecessor's contract but
with specilic changes by article and section I those changes were agreed to.
Respondent would adopt the contract as revised In closing. negotiations the
Union's earliest convenience were requested.
Concerning the alleged unilateral change of lunch periol. made l)ecember
13. no finding of a iolation is appropriate in the circumstances. The matter
of a I-hour lunch period Ibr unit housekeeping employees was bought up at
an early meeting of Administrator Campanella with employlees. The firmer
administrator of the ('enter had allowed unit employees to, combine lunch
and break periods: other employees did not do so. ('ampanella reacted to an
employee question by saying that everybody would he treated alike. In this
context. the Chairman does not perceive this ias having obstructed the collec-
tive-bargaining process that ensued See. generally his concurrence in 4Anri
Shiops. In(, d/h/a Ardent . 211 NLRB 501. 50(3 1974)
action set tforth in the said recommended Order, as so
modified 3
I. Substitute the following for paragraph (d):
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of'
the rights guaranteed them in Section 7 of the Act."
2. Substitute the attached notice fior that of the
Administrative Law Judge.
'See Im, ,n l F,ods. Ira. 242 N I.RB 1357 19 7
9
).
APPI:NI)IX
No I I( Too ENMI.() YIIiS
PosiI) BY ORDER F ()1111.
NAII (NAI. ABO)R RL.AIIONS BARDI
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence and cross-examine witnesses,
the National Labor Relations Board has found that
we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
Wi WI.l. NOI point out or otherwise identify
as "troublemakers" to our employees those em-
ployees who are union supporters.
Wti Wll.L. NOI discourage membership in Dis-
trict 1199E, National Union of Hospital and
Health Care Ernmployees, Retail, Wholesale, De-
partment Store Union, AFL-CIO, or in any
other labor organization, by discriminatorily dis-
charging or by in any other manner discriminat-
ing against employees with respect to their hire
or tenure of employment or any term or condi-
tion of employment.
W \vwii.. NO I refuse to bargain with the
above-named Union as the exclusive bargaining
representative of employees in the following ap-
propriate unit by unilaterally changing the estab-
lished lunch period for unit housekeeping em-
ployees, unilaterally refusing to notify the Union
within 48 hours of any suspension or discharge
of unit employees. and unilaterally refusing to
follow established grievance procedures. T'he ap-
propriate bargaining unit is:
All full-time and regular part-time service and
maintenance employees who work regularly
24 or more hours in the workweek, including
food service employees, housekeeping employ-
ees, and nursing service employees, excluding
office clerical employees and all other clerks.
physicians dentists, registered nurses, licensed
practical nurses. technical nurses, technical
and professional employees. temporary em-
246 NLRB No. 114
700
GARRISON VALLEY CENTER INC.
ployees. guards, confidential employees, super-
visors, administrative and executive employ-
ees.
WE WILL NOT in any like or related manner
intefere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section
7 of the National Labor Relations Act.
WEt wn.i. offer Cynthia Ghee and Mary Ann
Curtis immediate and full reinstatement to their
former jobs or, if those positions no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings they may have suffered as a result of the
discrimination against them, with interest.
WE WILL, upon request, bargain with the
above-named Union as the exclusive bargaining
representative of employees in the above-de-
scribed appropriate unit with respect to rates of
pay, wages, hours of employment, and other
terms and conditions of employment, and. if an
agreement is reached, embody such agreement in
a signed contract.
GARRISON VALI.EY CENTER, INC.
DECISION
FRANK H. IIKIN, Administrative Law Judge: Unfair la-
bor practice charges were filed by the Union in Case 5 CA
9185 on February 3 and were amended on March I and 10,
1978. Unfair labor practice charges were filed by the Union
in Case 5 CA-9342 on March 28. 1978. Separate unfair
labor practice complaints issued in the above case on
March 15 and April 20, 1978. The two proceedings were
later consolidated, and hearings were conducted in Balti-
more, Maryland, on August 9. 10. and 1, and October 5,
1978. Briefly, General Counsel alleges that Respondent vio-
lated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, by threatening to discharge employ-
ees because of their membership in and activities on behalf
of the Union and by discharging employees Cynthia Ghee
and Mary Ann Curtis because of their union activities. Fur-
ther, General Counsel alleges that Respondent, in violation
of Section 8(a)(5) and (1) of the Act, failed and refused to
bargain in good faith with the Union as the bargaining rep-
resentative of its employees in an appropriate unit by uni-
laterally refusing to notify the Union within 48 hours of any
suspension or discharge of unit employees, by unilaterally
refusing to follow the grievance procedures as set forth in
the collective-bargaining agreement between Respondent's
predecessor and the Union, and by unilaterally changing
the lunch period for unit housekeeping employees. Respon-
dent denies that it has violated the Act as alleged.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of coun-
sel, I make the following:
FINI)IN(iS )1- At I
A. Inlrodltuclin
It is undisputed that prior to November 30, 1977, Fox-
leigh Nursing Home. Inc.. t/a Foxleigh Development Cen-
ter (Foxleigh), was engaged in the operation of a nursing
home in Garrison, Maryland. On or about December I.
1977, Respondent purchased the Garrison facility. The par-
ties have stipulated that "at all times since December i,
1977, Respondent has continued the operations of its prede-
cessor. Foxleigh, at the same location, utilizing the same
equipment, offering the same services for substantially the
same patients, using the same employees to perform the
same job functions, working under the same supervisors
personnel," and, consequently, "at all times since on or
about December 1. 1977. Respondent has been the succes-
sor to Foxleigh." Further, the parties have stipulated that
Respondent is an employer engaged in commerce within
the meaning of Section 212). (6). and (7) of the Act, and that
the Charging Party Union is a labor organization within the
meaning of Section 2(5) of the Act.
B. The Evidence Pertaining to the Discharge of' Enmpovlces
Ghee and Curtis
Cynthia Ghee testified that she first started working at
the Garrison facility as a nurse's assistant during earl)
1973, that she was a member of the Charging Party Union,
and that on Thursday, January 12, 1978, "we attended one
meeting trying to come up with a contract." Ghee recalled
that present at this contract negotiating session were some
six employees,' Union Representative Ron Hollie. the
Union's attorney. Respondent's administrator and owner.
Ida Campanella. and the Respondent's attorney. According
to Ghee:
We was talking about things that they was trying to get
in the contract and we went into different things . .
that was going around the building. People was talking
about the building being sabotaged and how people
was treating the other employees .... Doering [attor-
ney for the Union] was talking about the scheduling,
how they were making people work five and six week-
ends, and eight days straight. And. Campanella asked
who was one of the employees that was working these
schedules, and I told her that I was, and she said some-
thing about she might look into it.
In addition. Ghee recalled that coworker Mary Curtis also
spoke up at this meeting. As Ghee testified:
She Curtis] was talking about-they had a soup ma-
chine put in, and the men had left some spoons, and
we was talking about Ms. Campanella had come to the
cannery or the little room where the things were. and
she was taking the spoons away because she did not
want the employees to use the spoons. and somebody
CGhee identified the employees as Ho.lard, .lndse). Curtis. Saunders.
White, and herself.
701
I)lEC(ISIONS OF NATIONAI ABOR RELATIONS BOARKI
had told her that the machine man left the spoons
there.2
On the day following this meeting, Friday. January 13,
(ihee worked the 3 p.m. to II p.m. shift at the home. (thee
recalled that "the nurse asked me to get her some urines at
night and I went and got them . . . came back land] re-
ported them to her." Ghee explained:
[Al couple of the patients had sugar and their urine
had to he checked. Around 9:30. I went and checked
two of the patients that I had . . . Ross and Brogham.
Ghee claimed that she "got the specimens and ... reported
to the nurse what the results were." Ghee was then asked,
"Did you get both specimens at that time?" Ghee replied:
At that time I did. I told her [the nurse] I had gotten
only one earlier that day which was Brogham. I asked
Mr. Ross for one and he refused to give it to me that
time .... She the nurse] asked would I get the other
ones and I got the other ones and I brought them down
to her and recorded them.
On Tuesday, January 17. 1978, Gihee had the following
conversation with Administrator ('ampanella:
I [hee] was working in one of the patient's rooms and
Campanella approached me about the urine, and I did
not know what she was talking about, and I asked her
what she was talking about, and she told me one of the
nurses, Manning . . . I am not sure whether that was
the nurse or not ... the nurse asked me to get a urine
specimen for her, and I told C'ampanella I did. I could
not understand what the problem was. So, she
[Campanella] said, if it ever happened again, I was
going to be disciplined. I was trying to ask her what
did she mean, what did she mean I was going to be
disciplined. I told her, Campanella, I asked the pa-
tients for the urine. If they won't give it to me I cannot
very well dip it out of the toilet. She did not say any-
thing. I walked down the hall. working, kept on work-
ing to the next room.
Then, as Ghee further related. Campanella "came down to
the next room . . . and called me out in the hall." Campa-
nella stated to Ghee "I'll fire you and you go tell your
Union that." Ghee replied, "[Y]es ma'm, you are the boss."
Ghee was accused by Campanella of' being "insubordi-
nate."
About 3 hours later, after the meal break, Campanella
"gave [Ghee a note and told [her] to punch [her] card."
(G.C. Exh. 2, dated January 17, 1978, is a copy of the docu-
ment which Campanella gave to Ghee). As Ghee noted, "It
is the letter which [Campanella] gave me when she dis-
missed me." This document, after reciting Campanella's
version of the above sequence of' events, states in part:
In his letter dated January 16, 1978. counsel for Respondent refers to the
January 12 meeting attended by employees Ghee and Curtis, in part, as
follows (Resp. Exh. 7(b)):
The discussion devolved into a general airing of what,l. for lack of a
better description. I would describe as mutual suspicions. There was a
discussion of vandalism, absenteeism. lateness, appropriation of soup
spoons, weekend work assignments, etc.
Counsel refers to "the unfortunate personal remarks which were made dur-
ing that session."
As new management of this Hlome., I must have em-
ployees who are conscientious and dedicated to doing
a good job. I cannot tolerate any less than that. he
very least I expect an employee to do is listen and not
be insubordinate and to not walk away from a conver-
sation. Since I have been Administrator . . you have
not fulfilled my expectations.
In view of the fact that you have been unable to
meet my expectations and because of your insubordi-
nation to me that I have discussed above I am forced.
as I would be with any other employee, to terminate
your service . . . effective immediately.'
Mary Ann Curtis testified that she started her employ-
ment in the dietary section of the Garrison facility during
June 1975, and that she later became a maid in the house-
keeping department. During early January 1978 Curtis was
paid $3.70 per hour. The "starting rate for new employees,"
according to Curtis. was $3.45 per hour. Curtis had been
informed that new employee Mary Fox was being paid only
$3 per hour. Curtis explained:
I [Curtis] had spoken to Mary Fox . .. and I said to her
that that was not in the Union contract, that if she was
getting $3.00. they were underpaying her, that the
starting rate was $3.45.
Thereafter, during January 1978, Mary Williams, Curtis'
supervisor, told employee Curtis that "Mary Fox had went
to the office to speak with Campanella," that Fox "had
reported to the office that I ('urtis said that she was not
getting the right amount of pay, and "that ('ampanella had
said that I [('urtisl had a big mouth."
C'urtis further testified that she was an "active Union
member" at the home. that she served as an "alternating
delegate" for the Ulnion. and that she, like coworker Ghee,
"was on the committee that met downtown for negotiation
of the contract with ('ampanella." Curtis recalled that at
the contract negotiating meeting with the Employer:
Campanella had brought up the issue of the contract,
she was changing a lot of things. She was proposing to
change the pay rate. There had been no seniority as of
December 1. Everyone had been there for a year, so
therefore there had been no vacation . .. the seniority
had changed, the pas rate was changed.
Curtis spoke up at this meeting as follows:
I [Curtis] didn't think it was right for everybody to
start off all over again for a whole year after we had
already worked to accumulate the time that we did
have, we were going to lose that. Also the pay rate was
going to change. I didn't think that was right to be
changed after you worked so long to reach a rate that
was going to be changed I didn't like that and I voiced
my opinion.
'On cross-examination Ghee recalled, inter alia, stating to Campanella
during the Januarv 17 incident:
[Wlell, I told her that if a patient won't give you, well if I ask the patient
Ito urinate and they have already went, did she expect me to get it from
the toilet.
Ghee recalled that (ampanella then stated. "Itlhat remark was uncalled for."
G(hee claimed that alter Campanella "stopping talking . . I went n down
the hall. She wasn't saving anything."
702
GARRISON VALLEY CENTER. INC
In addition. Curtis noted that coworker Ghee also spoke up
with reference to "how she was working ... four weekends
in a row." Shortly thereafter, on the morning following the
above contract bargaining session, as Curtis further testi-
fied, Supervisor Mary Williams discussed the meeting with
employee Curtis at work. Curtis recalled, "She [Williams]
said that she heard that I [Curtisl had the most mouth at
the Union meeting the previous night before."
Curtis went on vacation during the third week of January
1978. Curtis "was scheduled to start back at work the first
of February." However, on January 31 Curtis returned to
the home to pick up her salary check. Curtis recalled what
transpired on that day as follows:
Q. What happened on the 31st?
A. On the 31st when I went to pick up the pay, I
was told that my check was in the office, because usu-
ally the checks be at the nurses station desk, but mine
was in the office, so knowing on that I went down to
the office, and when I got there Ms. Campanella, she
was there and she was talking with someone in the
hall, and said she would be with me in a minute.
So when the minute showed up she told me to have
a seat in her office, which I did have a seat in her office,
so she had said to me, first chance she said, Ms. Curtis,
I find it necessary that I have to cut back on the staff
and I no longer need you, for which I said why wasn't
it that she had mentioned [thatl at negotiations, that
she should when it come time to lay off, that it would
have been the person with the lesser seniority.
Then she said well, Ms. Curtis, I am not satisfied
with your work and I have to let you go, so, I said, well
was never anything brought to me before now. I came
to pick up my check on Tuesday, why wasn't this men-
tioned before I went on vacation that you was unsatis-
fied with my work as far as a written warning or even
calling me to your office and speaking to me which she
never have.
Q. What did you say to that?
A. Nothing, she didn't say anything.
Curtis again returned to the nursing home on February 1.
Supervisor Williams "approached" Curtis and "said not to
let anybody see me [Curtis] because it was already said that
I was fired on the 31st .... " Curtis explained to Williams
that Campanella "didn't give me anything on paper. This is
what I wanted, a statement saying that I was fired." Later
that same day, when Campanella arrived at the Home, Cur-
tis "went down to her office and I asked her again for a
statement to say that I was fired or laid off or what, and she
said I do not have to give you anything. She said that if I
didn't leave the building she would call the police, which
she did."'
4Curtis acknowledged on cross-examination that she had been "pretty
friendly with Mary Williams"; that Williams had warned Curtis previously
"that Campanella is a tough administrator." "is not going to tolerate the
kind of stuff that used to go," and "is out to get you"; and that Campanella
had informed the employees at a meeting in December "that the entire nurs-
ing facility had to he in ship-shape conditions." Further, Curtis acknowl-
edged that. when she returned to the home on February . "I was upset."
Curtis explained:
I ICurtisl demanded from her [Campanella] a pink slip or firing slip or
termination, for her to give me something.
Jean Morris testified that she was employed by the home
as a licensed practical nurse from January to June 1978.
that January 2 was "the first day" Morris "worked with"
the home's director of nurses, Pat Skidmore, and that on
January 2 Skidmore made the following statements:
As we were touring through the building, she [Skid-
morel was explaining to me Morris] and introducing
[me] to the employees.
(O]ne of them was Cynthia Ghee and another was
Ms. Smith.
As we were coming down the hall. as we were hav-
ing our tour, she was discussing to me about problems
they were having, and then she pointed out Ms. Ghee.
Cynthia Ghee. and stated the fact that she is one of the
troublemakers that they are trying to get rid of. and
you have got to watch her.
Morris further testified: "She Skidmore] did make the
statement ... that it would be hard or difficult" to dismiss
employee Ghee because members of Ghee's family also
worked at the facility and "the whole family would up and
leave all at the same time." In addition, Morris recalled that
Skidmore also stated "that they had not signed the Union
contract"; "they were working without a contract," and
"they wanted to get rid of the Union and all the trouble-
makers...."
Richard Thompson testified that he was employed by
Respondent on or about January 3, 1978. as "a mainte-
nance supervisior." At the time Thompson's duties were
explained to him by Administrator Campanella as follows:
As a maintenance supervisor, just do maintenance
throughout the building, repairing, plumbing, painting
floor tile, general maintenance to the building, and to
do porter's work in the basement of the building only.
the new building.
Further, according to Thompson. Campanella then stated
to him that "she was having trouble with the Union." Sub-
sequently', while Thompson was working at the home.
Campanella pointed out employee Curtis "as being one of
those troublemakers for influencing people to be pro-
Union." Thompson added:
She [Campanella] made statements at various times
that she wished she could have a complete 100 percent
turnover in personnel, but she also stated that she
She ICampanella] slammed the door in my face, that is what she did.
Her aide was there . . . Ms. Skidmore. the RN nurse was there. She
came and told me to leave and call on the phone and make an appoint-
ment . . I told her I was not going to leave.
In addition, Curtis acknowledged on cross-examination that Supervisor Wil-
liams had told her on a number [ol occasions that she was "out of her [work]
area." and that Administrator Campanella had stated to the employee when
she was terminated "that she [Campanella] had spoken to [CurtisI several
times about being out of Iherl assigned area."
On cross-examination Morns acknowledged that her "roxmmate" Rich-
ard Thompson was also employed by Respondent, that Thompson was dis-
charged by the home, that Morris questioned Campanella about this inci-
dent. that Morris later resigned from the home, and that Morris
subsequentl) asked Campanella for her "job back" and was not rehired.
Thompson's testimony is discussed below
703
I)E('ISIONS OF NATIONAL LABOR RELATIONS BOARI)
knew that legally it would not be easy to do. It would
be an impossibility legally.,
Housekeeping Supervisor Mary Williams testified that.
during early December 1977, Administrator Campanella
"wanted to know why Ms. Curtis had been out of her as-
signed area, had she been completing assignments assigned
to her." Williams assertedly responded that Curtis "should
not have been out of her assigned area and in some inci-
dents her work was not complete." Further, Williams testi-
fied that both before and after the above conversation with
Campanella.
I spoke to [Curtis] about being out of her assigned are,
but she would say she was on her way back to the assigned
area or she left for some reason: she went to the laundry to
get rags, she went to get tablecloths or something.
Williams also testified:
I told [Curtis] and she knew that we had new owners
and things were going to be a little different. Every-
body would have to do the work that they were as-
signed.
I told her that we would have to get the work done and
everybody would have to stay in the area that they
were assigned.
Williams acknowledged that she had said "just about" the
"same thing" to "the other employees that worked under"
her. Williams was "not picking on Ms. Curtis for anything
that she] may have observed Ms. Curtis doing" -- not at
this particular time." Elsewhere in her testimony Williams
claimed that from December until January Administrator
Campanella "stopped me in the hallway and she would ask
me who was working in this particular area and why this
was not done, and it was the old building that Ms. Curtis
was working in." Williams also claimed that during Decem-
ber "Ms. Curtis was on the phone quite a lot."7
Williams related the sequence of events culminating in
Curtis' discharge as follows:
' On cross-examination Thompson acknowledged that he was "fired" by
Campanella. that the Union filed an unfair labor practice charge pertaining
to his discharge, and that this charge was later withdrawn. Thompson admit-
tedly stated to Campanella during his initial interview that he "was not lond
of unions." Further. Thompson acknowledged that Campanella had in-
structed him to "report back to her about what the employees were doing" at
work, and that he in fact did "report back to Campanella about what he saw
employees doing as far as work."
? Williams asserted, inter a/lia, that Curtis' work during December and
January was "unsatisfactory" that "she would forget to sweep behind the
furniture in some rooms," that "she would sweep the dirt into a closet." that
this "was brought to Williams'l attention by a porter," that she "did not
clean the offices," that a secretary "complained" about the foregoing con-
duct. and that she was "forgetful," citing her failure to put tablecloths on
seven tables in the dinning room. Williams asserted that "none" of the "other
three maids" wanted "to work in the area she worked when she was off."
Williams also added that an aide had complained to Williams about a "dir-
ty" bathroom and this too was Curtis' "responsibility." Curtis was, according
to Williams. "the least good of the four maids." However, according to
Williams. "She {Curtis] used to be a airly good worker. but it seemed to go
downhill, it declined." Williams also cited incidents during December when
Curtis assertedly admitted that "she dozed off" while on break and in Janu-
ary when Curtis again assertedly admitted that "she had put her head dow n
for a few minutes." Williams then cited an incident when Curtis "left a
bucket of water and a rag in the closet." This incident was brought to Wil-
liams' attention by another employee. And Williams cited, inter alia, in-
stances when Curtis "smoked" in the laundry room Williams assertedly
called these matters to Curtis' attention and to Campanella's attention.
The third weekend in January .... Mr. Curtis had
been on vacation about four to five days. Ms. ('ampa-
nella asked me who was working in the old building.
She said it looks much better than it has been looking
and this was true. Catherine Daniels had been working
in this building and she had washed walls and cleaned
the office out and things that were very visible.
She said, well, she asked me how we were doing and
I said we were doing well, very well, so she said, well.
so she said, well, that she was going to terminate Ms.
Curtis when she came back off of vacation.
Williams acknowledged that on this occasion she had not
gone to Campanella "telling her [Campanella] that Cather-
ine Daniels was doing a better job, that Campanella had
"sought out [Williams]" that Campanella then apprised
Williams that "she was going to discharge Curtis," and that
Williams "did not have any idea that [Curtis] would be
terminated at the time [Curtis] went on vacation."
Mary Manning, a self-employed nurse who "frequently
does help out institutions for relief purposes," testified that
on Friday, January 13, 1978, she worked as charge nurse at
Respondent's facility on the 3-to-l I p.m. shift. Manning
recalled:
[A]t the end of the shift, I asked for a report from all
of the nursing assistants. One in particular, Cynthia
Ghee, did not have her written report for me.... I
asked her to show me the report of the vital signs and
the urines and the treatments she had done on her pa-
tients .... She didn't have it. She didn't have it written
down .... I asked her if she tested the urines and took
the vital signs of' the patients she was responsible for,
and she said yes .... I asked her for the results. She
had the vital sign results, and the urine, she said the
patients did not void, did not pass their urine .. I
explained to her that it was her responsibility to test
the patients' urine and that would have to be done
before she went home .... She did before she left the
Home.
Manning related the above incident to [)irector of' Nurses
Skidmore "a couple of days later."
Patricia Skidmore, director of nurses, testified that Man-
ning related the Ghee incident to her on Sunday, January
15, that Skidmore later spoke to Ghee about this matter
and warned Ghee that she "didn't want it to happen
again," and that Skidmore also related this matter to Ad-
ministrator Campanella. Skidmore acknowledged that she
"first" discovered that Campanella had terminated Ghee
"after it already happened." Skidmore also acknowledged,
"I had to encourage aides to make sure they got [urine
specimens]. Occasionally, they didn't." Skidmore generally
denied, inter alia. various coercive or antiunion statements
attributed to her by Morris. Skidmore claimed that Thomp-
son once "shouted to me 'I'm going to get your boss if' it's
the last thing I do, if it takes every bit of' money I've got in
the bank?" This incident occurred, according to Skidmore,
"on the day Thompson was discharged."
Ida Campanella, owner and administrator of the home
since December 1. 1977. testified that upon takeover of the
facility she discovered that the "housekeeping" was "de-
plorable." that there was "much to be desired" in "general
704
GARRISON \VAI.I I Y (N I R. IN(C
patient care." and that there was excessise tardiness and
absenteeism: consequentlN. she "had to ightent controls."
Companella met ,aith the employ ees at the home on or
about December 13 and, as she cxplainld. "told them what
I expected of' them .... " -urthelr. (allpanella clairned that
following her takeoser "there wais sabotage goilg on in the
facility." a alse fire alarm .ats pulled .... transmitters
were taken out of all the telephones. " the "heat was I oA-
ered," and "thermostats jand I toilets w ere broken." (anlipa-
nella noted thait she had terminaled a significant numlbher of
employees. and many employees hlad resigned. (See (i.C.
Ixh. I() and Resp. xh. 19. listing terminating anti resilna-
tioi)s.)
In addition. ('ampa;nella testified that licensed practical
nurse Molrris "wanted to be in charge of the oerall opera-
tion."'' that Campanella exploained to Morris "that she could
not he in charge of' the floor," that M1 orls "rcareted a coln-
stant undercurrent throughout the facilit '' that Morris re-
signed and subsequently attempted "to retract the resigna-
tion." and that Campanella refused "to retract [Morrls']
resignation. As for the mailntenltane suLper isor. I'hompson.
Campanella claimed that when Thompson ;Ias hired:
Mr. Thompson said to me he would not accept a posi-
tion if' he was going to be in the Ulnion.
I told him I would bring him in as a maintenancee
supervisor which, to my knowledge, would keep hi
out of' the Union.!
Campanella acknowledged telling Thompson during his
prehire interview "that we were having problems through-
out the Home." However. Campanella generally denied i-
ter alia, various antiunion or coercive statements attributed
to her by Thompson. Campanella also denied telling Wil-
liams that employee Curtis "had the biggest mouth" during
the January collective-bargaining session or making related
statements attributed to her.
With respect to the firing of employee Ghee, Administra-
tor Campanello asserted:
I fired Ms. Ghee fior her discourteous manner to me
Campanella recalled the incident in part as follows:
On January 17 . . . I approached Ms. Ghee in the hall
to stress the importance of collective urine specimens
.... She looked quizzically and appeared not to under-
stand what I was referring to.
She said I don't know what you are talking about.
And then I said to her--I am referring to Friday
night's incidents where Ms. Manning had asked you to
get the urine specimens. And she sarcastically turned
around and said to me-what do you expect me to do?
Dip them out of the toilet bowl?
I told her that remark was uncalled for.
I was in the middle of telling her the importance of
urines and why they are collected. She walked away to
the next room. I walked after her and told her that the
least she could do was wait until I was through my
Housekeeping Supervisor Williams acknowledged In her estimony that
"insofar as the cleaning 1ell fxoors. cleaning. scrubbing hompson was doing
the same thing the other porters were doing."
conersation. She said I have ork to do and if I u ere
talking t) another enmploxec. ou , ould expect me to
he \.ssorkin.
I tld her that as the administrator. I telt she should
listen to what I had to ay. She folded her arms In front
of her and said. "Yes. Ia'in hbiss."
I said to her. I ill terminate ou ftor insuhordina-
tIs ll on
ht is ,hen I ant srrN. 'hat is *h cIt she said to
tlc. "r'e. a'a.nt. boss." And i aIked a ta}. She con-
tinued t give out x. ater pitchers.
('antpanella then calleld her tttorney and prepared G(;neral
('ouiscl's txhihit 8. 1 lse, here in her estimon ('i;mpancel-
la ackno l edtged that she had Sltatled to (hcte: "if slte didn't
like msl decision . . she should take it up ith tile nion
.. ('ampanella claimned: "I hbcalme disturhbeedhecause I
h;ad used te %sord Inio'n" and btr this reason contacted the
attorne. Prior to this incident ('ampanella admitledv had
no disciplinar problems it (iGhee. ('ampanella al(so ac-
kno ledged that she had met with the union negotiators
some 5 das earlier on JanuarN 12. and that hoth ('urtis anid
(ihee spoke up at this meeting.
With respect to the firing of emploee Curtis. Adllnis-
trator ('ampanella claimed that Curtis as 'frequently out
of' her assignied area. requently on the telephone [and] had
unsatislactory work pertirmance."'' (ampanella recalled
T'he week of Januar 25, on making my dailN rounlds. I
noticed that the building had improved in geineral
housekeeping. I made this comment to Mls. Williams
that the building had improved. And Mls. Curtis was
not there. She was on vacation.
According to Campanella, she and Williams then discussed
the act that Curtis "has not improved" throughout Decem-
her and January. and consequently the, made a "joint deci-
sion" to terminate Curtis "''hen she returned f r her
check." Thereafter. on January 31. ('ampanella informed
Curtis "that I was terminating her because of her being
frequently out of her assigned area and hecause her work
was unsatisfactory and had not improved over the Decem-
ber-January period." Curtis became "quite upset." Campa-
nella admittedly stated to Curtis during the employee's ter-
mination interview "that I [Campanella] was going to
decrease the work force." Campanella assertedly referred to
a decrease in the work force because "it would be a softer
blow fobr" Curtis. On the following day., according to
Campanella. Curtis unsuccessfully demanded a layoff' slip
from Campanella. Campanella refused.9
9Supervisor Mars Williams further testified that. following Curtis' dis-
charge, Curtis complained to her: "Mary. do you know what shit [Campa-
nellal is trying to pull? She just fired me." Curtis stated. in the presence of
Directr of Nurses Skidmore, "that is another snake n the grass" and ac-
cused other employees or being responsible fur "doing the sabotage around
here and I ICurisl am being blamed Rir it. I am being fired for it Later,
according to Williams. Curtis aulted Campanella Ior being "wrong . this
is no w;as to run a business." In addimin. William, claimed. niter alia. that
"se*eral weeks'" ter Curtis admitted in a telephone conversation that "the
only thing she ICurtis] did as tar as sabotage was to take the transmiiuers out
of the telephones." Williams denied. inter ah1a, arious antiunion or related
statements atribuled to her by Curtis On rebuttal. Curtis denied making the
ahbove admtssilun i) Witliams pertaining to acts of sahntage.
7()5
DECISIONS OF NAT'IONAI LABOR REI.ATIONS BOARD
C. The Evi/denec Pertaining to Respondent's (hange. In
Terms and Conditions of' Emplol'ment at the Home
Mars Williams testified that she had been a housekeep-
ing supervisor at the home for about 4 years. that the
housekeeping employees had been permitted to take a I-
hour lunch period fr about II months prior to December
1. 1977. and that shortly after the change in ownership ot
the home:
. . at a meeting on December 13. 1977. it was brought
out . . . that housekeeping was getting an hour and
other employees were getting one-half hour.
So, Ms. ('ampanella said ever body would be
treated the same, and that housekeeping would get a
half an hour assigned lunch break and to 15-minute
breaks.
Williams explained that the reason the housekeeping
employees had been permitted some II months earlier
to take a I-hour lunch period was:
... because it was their choice and the administrator's
choice that was there at the time. lie said it was oka if
they all took it at one time. one hour.
The housekeeping employees, in turn. had given up their
two 15-minute breaks.
Ronald [ollie. president of 'Charging Party Union, iden-
tified General ('ounsel Exhibit I I as the collective-bargain-
ing contract between the predecessor employer oxleigh
and his Union pertaining to the unit employees at the Gar-
rison facility. This contract, by its terms, was effective on
July 1, 1977. and was to continue operative until July I.
1979. Although Hollie acknowledged that this contract had
not been executed by the predecessor employer and the
Union until January 17. 1978 (after Foxleigh had trans-
ferred ownership of its Garrison facility to Respondent).
Hollie explained that long before the transfer of ownership.
about August 1977, the predecessor employer and the
Union had executed "a memorandum of agreement" (G.C.
Exh. 11). Hollie further explained that the particular provi-
sions in the contract pertaining to the requirement that the
predecessor employer give notice to the Union within 48
hours of any suspension or discharge and pertaining to
grievances (G.C. Exh. II. arts. 14 and 12) had been opera-
tive between the predecessor employer and the Union since
about 1970. Hollie noted, "It is pretty standard in all our
contracts. "
Hollie acknowledged that upon Respondent's takeover of
the home during December 1977 he had "never instructed
anyone to give [Respondent] the old contract" or to advise
Respondent of "the past practices as they existed under the
Foxleigh administration." Hollie also acknowledged that he
had made no effort prior to the first bargaining session be-
tween Respondent and the Union on December 15, 1977,
"to advise the Home as to the substance and the exact lan-
guage of its agreement with Foxleigh." However. I note
'°The memorandum of agreement executed by Foxleigh and the Union in
August 1978 does not purport to modify the 48-hour notice and gnevance
procedure provisions in any manner material to this proceeding. Indeed, the
provisions of the prior contract between the Union and the predecessor em-
ployer remained essentially unchanged. See G.C. Exh. I I.
that counsel for Respondent, in his letter to the Union
dated December 19, 1977. summarizes what purportedly
transpired at the December 15 meeting between the Re-
spondent Employer and the Union. (See Resp. Exh. 6.) It is
clear from this letter that the Union and Respondent re-
Ferred to "the provisions of' the nion's agreement with the
seller .... " Indeed, counsel for Respondent. in this [)ecem-
her 19 letter, states that Respondent "agrees to adopt the
1977 . . . contract except for the [some 22] changes listed
hereinafter .... "" I also note the following acknowledge-
ment made by counsel for Respondent at the hearing in this
case:
We made no effort to comply with the 48-hour no-
tice [provision]. In some instances we may well have
done it. In some we may have missed doing it.
The point is, we did not believe, and we don't be-
lieve. that the Act requires a purchaser. during the pe-
riod between the time when the purchaser . . . takes
over and reaches agreement, to adopt the procedural
aspects of the grievance procedure.'l
Administrator ('ampanella testified that she met with the
home's employees on or about December 12, 1977. "that
one of the employees spoke up and wanted to known wh,
housekeeping had an hour lunch and the other employees
had a half hour lunch ... that "at that meeting I informed
H Counsel for Respondent stated its positon in this letter as illows:
In the interest of harmony, and in an efbort to achiese an amicable
transition with the least possible difficulty. without wailsng its legal
position and with the clear understanding that its actions should not
therefore he misconstrued or viewed as adoption of the seller's labor
contract, the Home is prepared to maintain a reasonable semblance of
the status quo ante during this interim period. We do nt. hwever. think
that without an actual agreement between the parties it would be proper
for Garrison Valley to honor the union-security. dues-checkoff. or grie-
vance/arbitration sections. Should a problem arise,. as in the case of the
employee who was discharged on December 3. 1977, the Htome, of
course, recognizes its legal obligation to discuss the matter and possibly
similar matters with the Union. We think. however. that arbitration
must be grounded in contract. and, once we have reached an agreement,
you may be assured, as you will observe from our following proposals,
that we, too, will desire to have a grievance/arhitration procedure in our
agreement with the Union.
Later, in a letter dated February 21, 1978, counsel for Respondent stated
{Resp. Exh. 7(c)):
While we have also advised you of management's willingness to rec-
ognize the Union as the bargaining representative and to discuss with
you the discipline of unit employees and former unit employees . we
do not feel compelled to follow the formal frms or the formal steps of
the old grievance-arbitration procedure as provided, and referred to by
you in the above-referenced letter.
Respondent and the Union subsequently reached a "memorandum of
agreement" during late May and early June 1978. This new agreement incor-
porated the language of the predecessor's contract except for certain changes
negotiated and listed therein. (See Resp. Exhs. 10 and 11.)
1t Hollie testified on cross-examination as follows:
Q. Would it be fair to say also Mr. Hollie that you, as chief executive
of the Union, were aware that the Nursing Home was willing to discuss
with you or your subordinates any grievance or problem which might
arise between the Home and one of the employees prior to the execution
of the contract?
A. It is according to when it came up, because on some occasions ou
were saying no and other occasions you said yes, you were. And finally
we had some problems resolved.
Cf. G.C. Exh. 10, which lists the terminations of about 20 unit employees
during late 1977 and 1978 and G.C. Exhs 3 9, letters from Respondent to
the Union pertaining to some of the terminated unit employees. Also see
Resp. Exhs. 7(a}, 7(c). and 16.
706
GARRISON VAI.LEY CNTER. INC.
all of them that everybody would be treated equally." and
that "everybody would get a half' hour lunch and two 15-
minute breaks effective the next day . .. " Shortly after this
meeting Campanella admittedly "consulted" with Supervi-
sor Williams about this practice. ('ampanella made no ef-
fort to discuss this change with the [Union.
In addition. Campanella claimed that "I have never seen
a Foxleigh contract until a meeting at the Hilton when Mr.
Berg [for the Union] threw it across the table and said. here
is the contract." Campanella placed this incident during
February 1978. Elsewhere in her testimony Campanella ac-
knowledge that she "had a general understanding of the
Union's contract" during her takeover as a consequence of
her earlier employment as an administrator. In fact, as
Campanella acknowledged on cross-examination, she had
been a stockholder in the predecessor employer parent cor-
poration and as an administrator elsewhere: "... had a
prior agreement with 1199. 1 have had contact with 1199. 1
think, since 1967."
On this record, I credit the testimony of employees G(hee
and Curtis as detailed supra. Their testimony concerning
the sequence of events culminating in their discharges im-
pressed me as reliable, trustworthy. and complete. On the
other hand, the testimony of Administrator Campanella.
Supervisor Williams, and Director of Nurses Skidmore. in-
sofar as it conflicts with the above testimony of Ghee and
Curtis, did not impress me as trustworthy and reliable.
Campanella's testimony was at times contradictory, eva-
sive, and unclear. Williams' testimony was also unclear and
confusing. Thus, for example. although Campanella as-
serted that the decision to fire Curtis was a "joint decision"
with Williams, Williams acknowledged that she "did not
have any idea that [Curtis] would be terminated at the time
Curtis went on vacation ... " and that Campanella 'sought
out" and informed Williams that Campanella "was going to
discharge Curtis." All this occurred, according to Williams,
when Campanella suddenly discovered that the facility
looked improved and Curtis was then on a I-week vacation.
I find this version and explanation of Curtis' sudden firing
to be incredible. I do not believe, on this record, that either
Campanella or Williams would have tolerated for almost 2
months the poor work record which they attributed to this
employee. Moreover, I note that Campanella, when sum-
marily firing this employee for this alleged poor work rec-
ord, admittedly shifted to a claimed reduction in force as
another reason for the employee's discharge. There was ap-
parently no such reduction in force at the facility. As dis-
cussed below, I find and conclude that management's be-
lated and shifting reasons for this employee's discharge are
pretextual and part of management's effort to get rid of this
known union supporter and union committee member. In
addition, I do not credit Williams' further assertion that
employee Curtis, weeks after her discharge, acknowledged
to Williams in a telephone conversation earlier acts of sabo-
tage at the facility.
In the case of employee Ghee, as discussed below, I find
and conclude that Campanella in large part provoked the
January 17 incident with this employee and then seized on
the employee's response and accompanying conduct as a
pretext to fire this union supporter and union committee
member. Thus, although nurse Manning explained that em-
ployee (ihee had to he instructed to get urine specimens on
one occasion and Director of Nurses Skidmore testified that
she related this criticism to Ghee. Skidmore also acknowl-
edged that she "had to encourage aides to make sure they
got" urine specimens and "occasionally they didn't." In
short, Administrator ('ampanella sought out G(hee on Janu-
ary 17. enlarged on the emploee's failure on one occasion
to obtain urine specimens, and then seized on the emplo}-
ee's response and alleged "failure to obey, to stand there."
as a reason for this summary firing. Campanella at the same
time admittedly told the employee to "take it up with the
I nion .... I am persuaded here that the real reason for
this employee's discharge was her known union activities.
In addition. I credit the testimony of employee Morris and
Thompson as recited tlupr. I have taken into account the
events surrounding their separations from the facility and
related evidence of record. I am nevertheless persuaded
here that, on this entire record. Skidmore in fact made the
statements attributed to her b\ Morris., and that Campianel-
la similarly made the statements attributed to her by
Thompson. I do not credit the general denials in this re-
spect by both Campanella and Skidmore.
Administrativ,e-osner Campanella claimed, in efflect, a
lack of specific knowledge with respect to any existing prac-
tices at the facility pertaining to a I-hour lunch period for
housekeeping employees and a 48-hour notice requirement
pertaining to firing employees and specific grievance proce-
dures. However, the testimony of Williams, the acknowl-
edgements of Campanella, and the admissions of and letters
by her counsel, as quoted supra and discussed below, make
it quite clear, and I find and conclude that Campanella was
at all times pertinent here aware of these existing terms and
conditions of employment. Further, I also credit the testi-
mony of Union Representative Hollie as recited above.
Much of his testimony is uncontroverted and is substanti-
ated by documentary evidence of record. While the events
attending predecessor Foxleigh's formal execution of its
contract with the Union after Respondent's takeover of the
Garrison facility were not fully explained by Hollie. I am
nevertheless persuaded here that Hollie's testimony as re-
cited above is otherwise reliable and complete. In particular
I credit Hollie's testimony to the effect that the predecessor
employer executed a memorandum of agreement months
before the takeover and, his explanation on cross-examina-
tion as to the difficulties which his Union encountered in
attempting to process grievances with Respondent.
Discussion
The General Counsel alleges that Respondent Employer
violated Section 8(a) ) and (3) of the Act by discharging
employees Ghee and Curtis because of their union activi-
ties. Counsel, for Respondent argues that Ghee "was dis-
charged for insubordination only, and that "when Adminis-
trator Campanella noticed that housekeeping had improved
in the old building during Curtis' absence, she decided to
discharge Curtis" (hr.. pp. 35. 391. It is, of course, settled
law that the "Board is not compelled to accept the employ-
er's statement" of the reason for discharging an employee
"when there is reasonable cause for believing that the
ground put forward by the employer was not the true one.
707
)l('ISIO)NS OF NAI IONAI. ABOR R.A IO()NS BOARD
and that the real reason was the employer's dissatisfaction
with the emlployee's union activity." See 7I'The Great .411/tlih
vail Poci/ic 7'a' Co., Inc. , . N 1. R B., 354 F.2d 707. 709 (5th
('ir. 1966). On this record I find and conclude that the real
reason Administrator ('ampanella summarily tired eim-
ployee Gihee on January 17 and employee Curtis on Janu-
ar, 31 was the known union activities of these two employ-
ecs.
I[hus, s the credible evidence of record shows, (lice
started her employment at the facilit', s a nurse's assistant
during 1973, she was a member of tile Union. and she ac-
tivel, participated in the contract negotiating session with
the I-mployer on January 12. 1978. (ihee identified herself'
to Administrator Campanella at this meeting as 'one o' tihe
emtployees" working "five and six weekends aInd eight days
straight l."u urther, employee Curtis stlalted her employ ment
at the fcililt in 1975. she too was an active union membler.
and she criticized management's proposed "changing of a
lot of things" at the negotiating session. Curtis also referred
at the negotiating session to Administrator ('Campanella's
"taking the spoons away" from the area where the soup
machine was located "because she didn't wanlit the emplo-
ees to use the spoons." Management was displeased with
the employee complaints voiced at this meeting. As counsel
for Respondent stated in his letter of Januars 16, "the dis-
cussion devolved into a general airing of what . . . I would
describe as mutual suspicions" and "nfortunate personal
remarks ... were made during that session .... " Indeed,
Supervisor Williams later admonished employee ('urtis that
"she [Willialmsl heard that [Curtis] had the most mouth" at
the meeting. Earlier that same month ('ut is had explained
to a new employee that the new employee was not getting
paid in accordance with the Union's contract. The new etm-
ployee in turn promptly went to the office to speak with
Administrator Campanella. Supervisor Williams subse-
quently cautioned Curtis "that Campanella had said that
[Curtis] had a big mouth."
Also during January, as licensed practical nurse Morris
testified, Director of Nurses Skidmore "pointed out" enm-
ployee Ghee as "one of the troublemakers that they were
trying to get rid of . . ." Management "wanted to get rid
of the Union and all the troublemakers .... " And, as
employee Thompson testified, Administrator Campanella
similarly explained to him during this same time period that
"she was having trouble with the Union." Campanella
pointed out employee Curtis "as being one of those trouble-
makers for influencing people to be pro-Union." Further, as
Thompson recalled, Campanella "made statements at var-
ious times that she wished she could have a complete 100
percent turnover in personnel . . . but . . . she knew that
legally it would not be easy to do .... "
On January 17, some 5 days after the negotiating session
at which Ghee spoke up, Administrator Campanella con-
fronted Ghee at the facility about not getting urine speci-
mens and warned "if it ever happened again" Curtis "was
going to be disciplined." The failure of aides to obtain urine
specimens from patients, as Director of Nurses Skidmore
acknowledged, was not an uncommon problem. Skidmore
"had to encourage aides to make sure they got lurine speci-
mens]. Occasionally, they didn't." Ghee replied to Campa-
nella's warning on January 17 by stating, "If they [the pa-
tientis won't give it to me I cannot verD well dip it out of the
toilet." (ampanella replied that (ihee's "remark was un-
called fir." Gihee walked away Ironn ('a mpanella and con-
untinued performing her joh. (ihee explained that ('armpanel-
la had "stopped talking." ('ampanella followed (Ghee.
faulted her for insubordination, and stated: "I'll fire you
and sou go tell your Ulnion that." It was then that (thee
stated: "Yes ma'am, you are the boss." ('ampanella, after
conferring with counsel, fired (;hce some 3 hours later. I)i-
recltor oN urses Skidmore first discovered that ('ampanella
had teruminated (thee "after it alread, happened."
lso weeks later. on Januarx 31. Administrator (ainpa-
nella stummtarils fired emploee (Curtis. ('ampanella claimed
that While Curtis was on vacationll during late .lanuar-y. "I
noticed that the building had improved in general house-
keeping." Curtis was not there, and ('ampanella dctermined
to tire the employee when she returned. Administrator
('iamipanella and Supervisor Williams, although attributing
to ('Curtis during December and Januar numerous and re-
peated shortcomings in her housekeeping work. had issued
no written warnings to this employee. And. as found supra,
('Campanella "sought out" Williams and apprised her that
she "was going to discharge Curtis." Williams admittedly
"did not have any idea that ICurtis] would be terminated at
the time [Curtis] went on vacation." Further. Campanella.
while firing this employee assertedly for her unsatisfactorN
work record, also stated to the employee that she, Campa-
nella, "wvas going to decrease the work firce" in order to
make it a "softer blow" fbr the employee. Campanella nev-
ertheless refused to give the employee a termination slip or
Ilaofl slip.
I find and conclude that Respondent Employer in sum-
marily firing Ghee and Curtis shortly after the January 12
contract negotiating session where the employees had criti-
cized Administrator Campanella and made "unfirtunate
personal remarks" was motivated in substantial part by
the union activities of these two employees. These two em-
ployees had been singled out earlier by management as
troublemakers. Management had threatened to get rid of
the troublemakers. The timing of their firings, the shifting.
inconsistent, and belated nature of' the reasons asserted for
the firings, and management's demonstrated union animus
all convince me that the real reason for the firings was the
employees' union activities, and that Ghee's conduct on
January 17 and Curtis' work record for December and
January were merely pretexts. Respondent, by this conduct,
thereby violated Section 8(a)(1) and (3) of the Act.'?
In addition, I find and conclude here that Administrator
Campanella's statement to employee Thompson, as cred-
ited supra, violates the prohibition of Section 8(a)( ) of the
Act. Campanella apprised Thompson that "she was having
trouble with the Union," she singled out employee Curtis
"as being one of those troublemakers for influencing people
11 Counsel for Respondent also argues hal Curiis, because of her posifir-
ing conduct as well as admitted acts of sabotage, should be denied "back-
pay" and "reinstatement." This record does not, in my view, show acts of
misconduct sufficient to deny an unlawfully terminated employee "hbackpay"
or "reinstatement" as generally prescribed by the Board. Curtis credibly
denied engaging in acts of sabotage and her postfiring conduct was, at worst.
a brief' moment of exuberance by an employee attempting to protest her
unlawful discharge and to obtain written documentation of the reason for
the discharge. The employee did not thereby render herself unfit for further
employment.
708
GARRISON VALLEY CENTER. INC
to be pro-Union," and she repeatedly made clear that "she
wished she could have a complete 100 percent turnover in
personnel, but . .. she knew that legally it would not be
easy to do .... Statements such as these, made by the
administrator-owner in the above context, plainly tend to
impinge upon employee Section 7 rights and therefore vio-
late Section 8(a)(1) of the Act. For, as the United States
Supreme Court stated in N.L.R.B. v. Gissel Packing Co..
Inc., 395 U.S. 575, 617 (1969):
Any assessment of the precise scope of employer ex-
pression, of course, must be made in the context of its
labor relations setting. Thus, an employer's rights can-
not outweigh the equal rights of the employees to asso-
ciate freely .... And any balancing of those rights
must take into account economic dependence of the
employees on their employers, and the necessary ten-
dency of the former, because of that relationship, to
pick up intended implications of the latter that might
be more readily dismissed by a more disinterested
ear. '4
The General Counsel further contends that Respondent,
a successor employer, violated Section 8(a)(5) and (I) of the
Act by unilaterally changing the established lunch period
for the home's unit housekeeping personnel. by unilaterally
refusing to notify the Union within 48 hours of any suspen-
sion or discharge of unit employees, and by unilaterally
refusing to follow the existing grievance procedures. The
Supreme Court, in N.L.R.B. v. Burns International Security
Services, Inc., 406 U.S. 272 (1972), made it clear that a
successor employer does not inherit its predecessor's collec-
tive-bargaining agreement. However, as the Board noted in
Anita Shops, Inc., db/a Arden's, 211 NLRB 501 (1974):
[the] much more difficult question ... is whether ...
[the successor] was legally entitled unilaterally to set its
initial terms and conditions of employment or whether
this is one of those "instances in which it is perfectly
clear that the new employer plans to retain all of the
employees in the unit and in which it will be appropri-
ate to have him initially consult with the employees'
bargaining representative before he fixes terms" [quot-
ing from the Burns decision].
The Board cited in Arden's, supra, cases where an 8(a)(5)
violation was found:
... where the successor employers, without prior warn-
ing, unilaterally changed the terms and conditions of
employment prevailing under the predecessors after al-
'tThe complaint, as amended. alleges that Respondent violated Sec.
8(a)() of the Act by Campanella's "threatening to discharge employees be-
cause of their membership in and activities on behalf of the Union/' The
above coercive statements by Campanella reasonably come within the scope
of this allegation; the above statements were fully litigated and. conse-
quently, under all the circumstances, are in issue here.
Further, counsel for Respondent's assertion to the effect that Thompson
was a supervisor beyond the protection of the Act is contrary to the evidence
of record here. Thompson, although given the title "maintenance supervisor"
in order to keep him out of the Union. performed rank-and-file work and
possessed none of the supervisor) indicia required in Sec. 2(1 I) of the Act It
is well settled that a rank-and-file employee cannot be transformed into a
supervisor merely by investing him with a "title and theoretical power to
perform one or more of the enumerated functions." Cf. N L. R B . Southern
Bleacherty Print Workers. Inc., 257 F.2d 235, 239 (4th Cir 1958). cert
denied 359 U.S. 911 1959).
ready having committed themselves to hire almost all
of the old unit employees with no notice that they
would be expected to work under new and different
terms.
See also Virginia Sportswear, Inc.. 226 NLRB 1296. 1303
(1976). and cases cited.
In the instant case Respondent hired all of the prede-
cessor's bargaining unit employees and, upon takeover, ac-
knowledged its obligation as successor to recognize and
bargain with the Union as the representative of the employ-
ees." Consequently. on this record, "This is one of those
'instances in which it is perfectly clear that the new em-
ployer plans to retain all of the employees in the unit and in
which it will be appropriate to have him consult with the
employees' bargaining representative before he fixes
terms.' " Arden's, supra. For, as the Board held in Virginia
Sportswear, Inc., supra at 1303:
Having ... not only planned to retain, but having
actually retained, all of the unit employees in its own
employ, Respondent ... was threafter no longer free as
a successor employer, either to fix its own initial terms
and conditions of employment. or to change previously
established terms and conditions of employment for
such employees, without consulting with the Union.
The record is clear that on December 13 Administrator
Campanella unilaterally and without notice to the Union
changed the established lunch period for unit housekeeping
personnel. For some I months the housekeeping personnel
had been permitted to take a I-hour lunch period since they
gave up their two 15-minute break periods. Campanella.
although aware that this practice had existed. unilaterall1
changed the lunch period of the housekeeping employees to
conform with the lunch periods of other personnel. The
housekeeping personnel were required to take a 30 minute
lunch and two 15-minute breaks. Housekeeping Supervisor
Williams explained this prior practice to Campanella. No
effort was made by Campanella to confer with the Union
with respect to this change. Lunch periods and break peri-
ods are "terms and conditions of employment" and there-
fore Campanella's unilateral action under the circum-
stances present here violated Section 8(a(5) and (1) of the
Act. See, generally. Virginia Sportswear, Inc., supra.
In addition, Respondent Employer admittedly failed and
refused to follow the grievance procedures which had been
established at the facility (see art. 12 of the predecessor's
agreement, G.C. Exh. II), and the requirement that the
home will notify the Union in writing within 48 hours from
the time of any suspension or discharge which also had
been established at the facility (see art. 14, G.C. Exh. I ).
These terms and conditions of employment had been opera-
tive at the predecessor's facility for a number of years prior
to the takeover by Respondent. And the credible evidence
of record as detailed supra shows and I find and conclude
that at all times pertinent to this case both Campanella and
her counsel were fully aware of these procedures and the
specific provisions pertaining thereto as contained in the
predecessor's agreement. (See Resp. Exhs. 6 and 7(a).)
1" Campanella testified that "I retained all the employees that were there
with the exception of the . medical director and the director or nurses "
Also see Resp Exhs 5, 6. and 7(a Campanella also testified ht "I cntin-
ued to pay them at the same rate that then were getting.
709
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The established grievance procedures and related 48-
hour notice requirement are "terms and conditions" of em-
ployment which cannot be unilaterally altered as was done
here. For, as the Board concluded in The Hilton-Davis
Chemical Company, Division of Sterling Drug, Inc., 185
NLRB 241, 242 (1970):
Applying these principles to the hiatus which some-
times exists-and existed here-between the expiration
of one agreement and the reaching of a new one, it
follows that employers and unions must continue to
meet and confer and to seek agreement in good faith,
not only over the terms and conditions of a proposed
new agreement, but also over employee grievances
which may arise during such hiatus.
In its Hilton-Davis decision the Board noted, in pertinent
part, as follows, at 242, 243:
In Bethlehem Steel the employer unilaterally attempted
to impose a new and different grievance procedure. It
seems clear to us that employer may not unilaterally
attempt to impose new channels for resolution of dis-
putes without undercutting the union's representative
status.
Subsequently, in Newspaper Printing Corporation. 221
NLRB 811, 820 (1975), the Board, in adopting the findings
and conclusions of Administrative Law Judge Nancy Sher-
man, stated:
Respondent's refusal to discuss the . . . grievance
through the joint standing committee constituted a
unilateral alteration of a previously prevailing condi-
tion of employment-namely, the grievance proce-
dure-which violated Section 8(a)(5) and (1) of the
Act, whether the contract was in effect or whether it
had expired. While it is true that the cases cited . . .
supra did not (as here) seem to involve a willingness to
comply with the duty to bargain about grievances in
the manner and to the extent required by the Act be-
fore any bargaining agreement has been entered into,
the Board has regarded such willingness as insufficient
to warrant repudiation of the contractually generated
grievance procedure. Kingsport Publishing Corporation,
165 NLRB 694 (1967): The Hilton-Davis Chemical
Company, Division Of Sterling Drug, Inc., 185 NLRB
241, 243 (1970). Nor is there any indication of the ac-
ceptability of such a defense in the other decisions in-
volving unilateral changes in the grievance procedure.
Further, because even precontract bargaining about
grievances requires the establishment of some kind of
procedures, as a practical matter it would be difficult
to distinguish between an abandonment of and a
change in contractually generated procedures.
While the foregoing cases concern the status of grievance
procedures following the expiration of a contract between
the parties, the Hilton-Davis rationale, in my view, is
equally applicable to successor cases such as the instant
one. Here Respondent Employer admittedly refused to
comply with established grievance procedures. (See Resp.
Exh. 7(a).)
In sum, Respondent Employer unilaterally changed unit
employees' lunch periods, unilaterally abandoned the 48-
hour notice requirement pertaining to the firing of unit per-
sonnel, and unilaterally abandoned grievance procedures,
all established terms and conditions of employment, in vio-
lation of Section 8(a)(5) and (I) of the Act.'
CONCLUSIONS OF LAW
1. Respondent Nursing Home is an employer within the
meaning of Section 2(2). (6). and (7) of the Act.
2. Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1 ) and (3) of the Act
by pointing out or otherwise identifying to its employees
prounion workers as "troublemakers" and by discrimina-
torily discharging employees Ghee and Curtis because of
their union activities.
4. Respondent violated Section 8(a)(5) and ( ) of the Act
by failing and refusing to bargain in good faith with the
Union as the exclusive bargaining representative of the em-
ployees in the appropriate unit described below, by unilat-
erally changing the lunch period for unit housekeeping per-
sonnel, by unilaterally refusing to notify the Union within
48 hours of any suspension or discharge of unit employees,
and by unilaterally refusing to follow the grievance proce-
dures. The appropriate bargaining unit consists of:
All full-time and regular part-time service and mainte-
nance employees who work regularly 24 or more hours
in the workweek, including food service employees,
housekeeping employees, and nursing service employ-
ees, excluding office clerical employees and all other
clerks, physicians and registered dentists, registered
nurses, licensed practical nurses. technical and profes-
sional employees, temporary employees, guards, and
confidential employees, supervisors, administrative
and executive employees.
5. The unfair labor practices found above affect com-
merce within the meaning of Section 2(2). (6). and (7) of the
Act."
REMEDY
Having found that Respondent engaged in certain unfair
labor practices. I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. And, as the unfair labor
practices committed by Respondent are of a character strik-
ing at the core of employee rights safeguarded by the Act. I
16 Counsel for Respondent. in his post-hearing brief, does not dispute the
appropriateness of the unit as alleged in the complaint. On this record I find
and conclude that the following employees constitue a unit appropriate for
collective-bargaining purposes within the meaning of Sec. 9 of the Act (see
(G.C. Exh. II p. I and Resp. Exh. 10, p. I; see also Resp. br fn 3):
All full-time and regular part-time service and maintenance employees
who work regularly 24 or more hours in the workweek, including food
service employees, housekeeping employees, and nursing service em-
ployees, excluding office clerical employees and all other clerks, physi-
cians and registered dentists, registered nurses. licensed practical nurses,
technical and professional employees, temporary employees, guards,
and confidential employees, supervisors, administrative and executive
employees.
17 Counsel for Respondent's motion to reopen the record to receive an
offer of proof which is opposed by the General Counsel. is denied as un-
timely and without basis. A careful review of this motion shows that, in
effect, it is essentially a reply to the General Counsel's brief and arguments
made at this hearing.
710
GARRISON VAIII'Y (':NER. IN('.
will recommend that it cease and desist from "in any other
manner" infringing upon rights guaranteed employees in
Section 7 of the Act.
It has been found that Respondent violated Section
8(a)(I) and (3) of the Act bh discriminatorily discharging
employees Ghee and Curtis because of their union activi-
ties. Respondent will therefore be directed to offer employ-
ees Ghee and Curtis immediate and full reinstatement to
their former positions or, if those positions no longer exist,
to substantially equivalent positions without prejudice to
their seniority or other rights and privileges and make them
whole for any loss of earnings suffered by reason of their
unlawful discharges by paying to them a sum of money
equal to that which they normally would have earned from
the date of Respondent's discrimination to the date of Re-
spondent's offer of reinstatement. less net earnings during
such period, with backpay and interest thereon to be com-
puted in the manner prescribed in F. WI Woolworth Conl-
panv, 90 NLRB 289 (1950). and Florida Steel Corporation,
231 NLRB 651 (1977).1? Further. Respondent will be di-
rected to preserve and make available to the Board, upon
request, all payroll records and reports and all other records
necessary and useful to determine the amount of backpay
due and the rights of reinstatement under the terms of this
Order. Respondent will also be directed to post the attached
notice.
It has also been found that Respondent violated Section
8(a)(5) and (I) of the Act by failing and refusing to bargain
in good faith with the Union as the bargaining agent of its
employees in an appropriate unit. Respondent will there-
fore be directed to bargain, upon request, with the Union as
the exclusive bargaining agent of the employees in the
above unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment and, if an agreement is reached, embody such agree-
ment in a signed contract.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'9
The Respondent Garrison Valley C'enter. Inc.. Garrison.
Maryland. its officers. agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Pointing out or otherwise identifying as "troublemak-
ers" to its employees those employees who are union sup-
porters.
(b) Discouraging membership in District 1199E. Na-
tional Union of Hospital and Health C'are Employees. Re-
tail, Wholesale. Department Store Union. AFL C10. or
any other labor organization. by discharging or by in any
other manner discriminating against its employees with re-
spect to their hire or tenure of employment or any term or
condition of employment.
(c) Refusing to bargain with said UInion as the exclusive
"See, generally, Isis Plumbing Heating Co. 138 NLRB 716 (1962)
f1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National abor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall he deemed
waived for all purposes.
bargaining representative of its employees in the following
appropriate untit. by unilaterally changing the established
lunch period for unit housekeeping employees, by unilater-
ally refusing to notify the [inion within 48 hours of any
suspension or discharge of unit employees. and by unilater-
ally refusing to follow the estahlished grievance procedures.
I'he Iappropriate bargaining unit is:
All full-time and regular part-time service and mainte-
nance employees vho work regularly 24 or more hours
in the workweek, including od service employees.
housekeeping employees. and nursing service employ-
ees, excluding office clerical employees and all other
clerks, physicians and registered dentists, registered
nurses, licensed practical nurses, technical and profes-
sional employees, temporary employees, guards, and
confidential employees, superisors administrative
and executive employees.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. l'ake the tillowing affirmative action necessary to ef-
fectuate the policies and purposes of the Act:
(a) Upon request, bargain with said Union as the exclu-
sive bargaining representative of its employees in the above
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment and, if an agreement is reached, embody such agree-
ment in a signed contract.
(b) Offer to discriminatorily discharged employees Ghee
and Curtis immediate and full reinstatement to their former
positions or, if their positions no longer exist, to substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges. and make them whole for
any loss of pay they ma'. have sustained as a result of Re-
spondent's discrimination against them. in the manner set
forth in this Decision.
(c) Preserve and make available to the Board or its
agents all payroll and other records as set forth in this De-
cision.
Id) Post at its facility in Garrison, Maryland, copies of
the attached notice marked "Appendix." 2" Copies of said
notice. on forms provided by the Regional Director for Re-
gion 5,. after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
day's thereafter. in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from date of this Order, what steps have
been taken to comply herewith.
I Is tURlIIER )RDERFD that the consolidated complaints
herein be dismissed insofar as they allege unfair labor prac-
tices not specifically found herein,
20 In the event that this Order is enforced b a Judgment of a United
States (ourt of Appeals, the A ords in the notice reading "Posted hby Order of
the National l.abor Relations Board" shall read "Posleld Pursuant to i Judg-
ment of the L nited States Court of Appeals Enforcing an Order of the Na
tional l .ibr Relations Board "
711