Mediplex of Danbury

National Labor Relations Board - Board Decisions

Jul 21, 1994

314 N.L.R.B. 470 (N.L.R.B. 1994)

470
314 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 All dates hereafter are in 1993.
3 No exceptions were taken to the dismissal of the loss-of-direct-
access-to-management allegation, and the allegation that the Re-
spondent suggested to employees the futility of selecting the Union.
4 Regarding the unlawful discharge of Casey, we do not rely on
fn. 2 of the judge’s decision concerning Casey’s asserted failure to
apply ‘‘Silvadine lotion’’ to a patient. Rather, on our review of the
record, we conclude that, contrary to the representations in its excep-
tions, the Respondent did not establish that Casey failed to perform
the Silvadine treatment, or that she falsified any records in this re-
spect, or that the Respondent asserted and relied on any such ‘‘fal-
sification’’ at the time it discharged her.
5 It is apparent that the Respondent purchased the Westport facility
at some point after the strike.
Mediplex of Danbury and Dolores J. Casey. Case
34–CA–6002
July 21, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On November 22, 1993, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, to
which the General Counsel filed an answering brief;
the Respondent subsequently filed a reply brief to the
General Counsel’s answering brief. In addition, the
General Counsel filed cross-exceptions and a sup-
porting brief, to which the Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions to the extent consistent with this Decision and
Order and to adopt the recommended Order as modi-
fied.
This proceeding involves employees’ protected
union organizing activity at an incipient stage in late
1992 and early 1993,2 and the Respondent’s reaction
to it. The amended complaint alleges that the Respond-
ent, which operates a skilled-care nursing home in
Danbury, Connecticut, discharged employee Dolores
Casey, a principal in the organizing activity, in viola-
tion of Section 8(a)(3) and (1), and engaged in mul-
tiple instances of conduct which violated Section
8(a)(1). The judge found that the Respondent unlaw-
fully discharged Casey on January 14 because of her
protected union activity. He also found that the Re-
spondent violated Section 8(a)(1) by coercively interro-
gating a group of its employees on or about January
25, but recommended dismissal of all the other 8(a)(1)
allegations.3 Although we agree with the judge’s find-
ings of unfair labor practices,4 we also conclude that
the Respondent violated Section 8(a)(1) in three other
instances, as specified and explained below.
1. On January 25 and 26, Ann Rogers, the Respond-
ent’s administrator, held a series of five employee
meetings to address the organizing activity then occur-
ring at the facility. The judge concluded that at least
one of these meetings, Rogers initiated her discussion
by inquiring whether any employees in the group had
been approached by the Union. As more fully detailed
in his decision, the judge, accounting for all the rel-
evant circumstances, including the unlawful discharge
of employee Casey about 10 days earlier, concluded
that this was an unlawful interrogation. He rec-
ommended dismissal of other 8(a)(1) allegations aris-
ing from these meetings, including alleged threats to
discharge employees should they engage in a strike
and to close the facility if they chose union representa-
tion. Regarding these two allegations in particular, he
found that the evidence was insufficient to conclude
that Rogers unlawfully threatened employees either ex-
plicitly or implicitly. We find merit in the General
Counsel’s cross-exceptions to the judge’s rec-
ommended dismissal of these two allegations.
It appears that the judge based his dismissal on a re-
view of several employees’ testimony regarding what
was said at a number of the five meetings held by the
Respondent. We find it necessary to consider Rogers’
remarks at only one of these meetings, based on the
credited testimony of employees Barrett and Torpey,
who both attended the same meeting on January 25.
According to the credited testimony, after her unlawful
inquiry concerning contacts with the Union, Rogers
spoke of several matters, including the signing of
union authorization cards and payment of union dues.
She also discussed a situation which she said had oc-
curred previously at a nursing home in nearby West-
port. As Rogers told it, after the employees voted in
a union at the Westport facility, they went on strike.
As a result, Rogers told the group, the nursing home
closed and the patients were moved, the striking em-
ployees were terminated, and the facility subsequently
reopened operating with permanent-replacement em-
ployees.5
Rogers’ remarks about the Westport nursing home
raise legal questions involving the interplay of two es-
sential principles of the Act: an employer’s free-speech
right, set forth in Section 8(c), and the Section 7 right
of employees to self-organize, protected by Section
8(a)(1). The Supreme Court established the general
standard for evaluating the lawfulness of employer
471MEDIPLEX OF DANBURY
6 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1969).
7 While Chairman Gould questions the validity of the holding in
Eagle Comtronics that does not oblige an employer to disclose
Laidlaw reinstatement rights in employer speeches regarding perma-
nent replacements, it is clear that even under Eagle Comtronics, the
Respondent’s statements here violated Sec. 8(a)(1).
In agreeing with his colleagues that the Respondent’s reference to
termination of striking employees violated Sec. 8(a)(1), Member
Devaney finds the Respondent’s statements in this regard to be dis-
tinguishable from the discussion of Laidlaw reinstatement rights in
Baddour, supra, which he would have found to be lawful. Thus,
Member Devaney notes that the employer in Baddour, unlike here,
advised employees that ‘‘you could wind up losing your job by
being permanently replaced with a new permanent workforce,’’ dur-
ing the course of remarks which were otherwise free of unfair labor
practices. In this case, the Respondent also interrogated employees
about their union activities and threatened plant closure during its
January 25 captive audience speech and, in discussing what would
happen in the event of a strike, spoke of ‘‘terminating’’ strikers.
Under these circumstances, and considering the Respondent’s having
unlawfully terminated a leading union supporter only 10 days earlier,
Member Devaney agrees with his colleagues that the Respondent un-
lawfully implicitly threatened to discharge employees if they should
go on strike.
statements addressing employees’ Section 7 activity in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In
essence, Gissel indicates that the analytical question is
whether the employer’s statement constitutes an unlaw-
ful threat of retaliation in response to protected activ-
ity, or a lawful, fact-based prediction of economic con-
sequences beyond the employer’s control. See 395
U.S. at 617–619. With particular regard to statements
concerning the employer’s privilege to hire permanent
replacements for economic strikers, the Board’s view
is that truthful, albeit legally incomplete, explanations
of the privilege are protected by Section 8(c),
‘‘[u]nless the statement may be fairly understood as a
threat of reprisal against employees or is explicitly
coupled with such threats . . . .’’ Eagle Comtronics,
Inc., 263 NLRB 515, 515–516 (1982). More generally,
a significant component in the analysis of an employ-
er’s remarks to employees which involve protected ac-
tivity is ‘‘the context of its labor relations setting,’’
Gissel, supra, 395 U.S. at 617. In other words, the
Board considers the totality of the relevant cir-
cumstances, id. at 589; NLRB v. Virginia Electric &
Power Co., 314 U.S. 469, 477–479 (1941); see also,
e.g., Harrison Steel Castings Co., 293 NLRB 1158,
1159 fn. 4 (1989) (a background of other unlawful
conduct or union animus represents significant context
for evaluating the lawfulness of an employer’s state-
ments).
Initially, we note that Rogers held the January 25
meeting about 10 days after the Respondent unlawfully
discharged Casey, a leader in the union activity at the
facility. In addition, Rogers began the meeting by en-
gaging in an unlawful interrogation of the entire group
of employees. In our view, these factors set a coercive
tone for the Westport statements that followed at the
meeting. Further, it is indisputable on this record that
the point of Rogers’ rendition of the Westport situation
was analogical, i.e., what happened at the nearby
Westport nursing home could also happen at a similar
facility like Danbury if the employees chose union rep-
resentation.
Considering the relevant circumstances, Rogers’ de-
scription of the striking Westport employees as having
been ‘‘terminated,’’ i.e., discharged, in addition to
being permanently replaced on the facility’s reopening,
is not merely an inaccurate statement of the law; it is
a clear contradiction of the Laidlaw6 reinstatement
rights afforded to economic strikers. This remark
‘‘may be fairly understood as a threat of reprisal’’
against the Respondent’s employees should they
choose union representation and engage in a strike.
Eagle Comtronics, supra at 515–516. Accordingly, we
agree with the complaint allegation that the Respond-
ent violated Section 8(a)(1) at the January 25 meeting
by threatening implicitly to discharge employees if
they should go on strike. See, e.g., Baddour, Inc., 303
NLRB 275 (1991).7
With respect to Rogers’ reference to the closure of
the Westport nursing home because of the strike, that
remark was joined specifically with the unlawful threat
to discharge strikers found above. Further, it was unac-
companied by any objective factual information which,
under Gissel, might have identified it as a lawful pre-
diction of economic consequences devoid of retaliatory
content. In light of the contemporaneous unfair labor
practices, we find that Rogers’ remark concerning the
closure of the Westport facility was reasonably inter-
pretable by the employees at the meeting as an implicit
threat to close the Danbury nursing home if the em-
ployees chose the Union and subsequently engaged in
a strike. Accordingly, it violated Section 8(a)(1). See,
e.g., Texas Super Foods, 303 NLRB 209, 218–219
(1991); Matheson Fast Freight, 297 NLRB 63, 66–67
(1989); Mack’s Supermarkets, 288 NLRB 1082 fn. 3,
1091–1092 (1988).
2. The judge also dismissed a complaint allegation
that the Respondent, through Supervisor Susan
McElroy, violated Section 8(a)(1) on January 27 by in-
forming employee Carole Richter that Casey had been
discharged because of her union activities. As a matter
of background for this allegation, on January 11 Casey
had solicited McElroy for her support in the organizing
activity; McElroy immediately reported the matter to
higher management; and Casey was unlawfully dis-
charged 3 days later. In the January 27 incident, which
is more fully detailed below, McElroy told Richter that
she had reported Casey’s union solicitation. The judge
concluded that in the absence of McElroy’s telling
Richter that Casey was in fact fired because of her
union activity, her discussion with Richter did not vio-
late the Act. We disagree.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 We note in passing that McElroy’s communication to Richter
also constitutes additional evidence of unlawful motive with respect
to the 8(a)(3) discharge of Dolores Casey.
According to the credited testimony, Richter, whose
schedule differed from Casey’s, first learned of the dis-
charge on January 27. During a discussion with other
employees at the nurses desk in Richter’s work area,
someone mentioned that Casey had been fired. Richter
asked why, and an employee said that she’d heard that
Casey had neglected a patient. Immediately thereafter,
Richter and Supervisor McElroy, who had witnessed
this discussion, began to walk the short distance be-
tween the nurses desk and the medication room. As the
two approached the medication room, McElroy told
Richter that Casey earlier had asked her if she would
be interested in meeting with a union representative.
McElroy added, ‘‘You know, I had to take that to the
office.’’ The record contains no additional details
which would provide context for McElroy’s remarks
independent of the just-completed exchange between
Richter and other employees regarding Casey’s termi-
nation.
The basic test for a violation of Section 8(a)(1) is
whether under all the circumstances the employer’s
conduct reasonably tended to restrain, coerce, or inter-
fere with employees’ rights guaranteed by the Act.
See, e.g., Sunnyside Home Care Project, 308 NLRB
346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147 (1959). In the discussion at the
nurses desk, Richter asked why Casey had been fired,
and was told by another employee that word was going
around that she had neglected a patient, and that this
was the reason for the discharge. Immediately fol-
lowing that discussion, Supervisor McElroy told Rich-
ter, as they walked to the medication room, that she
had reported Casey to higher management because of
her union activity. Given the immediate proximity of
McElroy’s statement to the conversation at the nurses
desk and the absence of any intervening topic, it is
reasonable to view her remark as an extension of that
discussion and, more specifically, as a second response
to Richter’s question: why was Casey fired? Thus, al-
though McElroy did not explicitly state that Casey was
discharged because of her union activity, the reason-
able inference in the circumstances is that this is ex-
actly what McElroy was communicating to Richter.
See, e.g., NKC of America, 291 NLRB 683, 688
(1988). Accordingly, we conclude that McElroy’s re-
mark constituted unlawful interference under Section
8(a)(1) because of its likely chilling effect on Richter’s
exercise of her Section 7 rights.8
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as
modified below and orders that the Respondent,
Mediplex of Danbury, Danbury, Connecticut, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Insert the following paragraphs after paragraph
1(a) and reletter the subsequent paragraphs accord-
ingly.
‘‘(b) Threatening to discharge employees in reprisal
if they should engage in a strike.
‘‘(c) Threatening to close its facility in reprisal if
employees should engage in a strike.
‘‘(d) Informing employees that other employees
were discharged because of their union activities.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees about their
activities on behalf of, or their support for, New Eng-
land Health Care Employees Union, District 1199,
SEIU, AFL–CIO or any other labor organization.
WE WILL NOT threaten to discharge our employees
in reprisal if they should engage in a strike.
WE WILL NOT threaten to close our facility in re-
prisal if our employees should engage in a strike.
WE WILL NOT inform our employees that other em-
ployees were discharged because of their union activi-
ties.
WE WILL NOT discharge or otherwise discriminate
against our employees because of their support for, or
activities on behalf of, the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dolores Casey immediate and full re-
instatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed and WE WILL make her whole
473MEDIPLEX OF DANBURY
1 Unless indicated otherwise, all dates referred to here relate to the
year 1993.
for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus
interest.
WE WILL notify Casey that we have removed from
our files any reference to her discharge and that the
discharge will not be used against her in any way.
MEDIPLEX OF DANBURY
Michael Marcionese, Esq. and Ursala Haerter, Esq., for the
General Counsel.
Lewis H. Silverman, Esq. and Susan Corcoran, Esq. (Jack-
son, Lewis, Schnitzler & Krupman), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on August 4 and 5, 1993,1 in Hartford,
Connecticut. The amended complaint here issued on April 7
and was based on a charge and first and second amended
charges filed on February 1 and March 19 and 30 by Dolores
Casey. The complaint alleges that since about September 1,
1992, Mediplex of Danbury (Respondent) has maintained a
section in its employee handbook entitled ‘‘What About
Unions’’ and that this has threatened employees with loss of
direct access to management representatives and diminished
terms and conditions of employment and unspecified repris-
als if the employees selected a union as their bargaining rep-
resentative in violation of Section 8(a)(1) of the Act. It is
further alleged that Respondent, by Ann Rogers, its adminis-
trator, and Dee Skidmore, its assistant director of nursing, on
about January 20, at its facility, violated Section 8(a)(1) of
the Act by interrogating its employees about their union ac-
tivities, informing its employees that it would be futile for
them to select a union as their bargaining agent, threatening
employees with loss of direct access to management if they
selected a union as their bargaining representative, threat-
ening employees with discharge if they engaged in a strike,
and threatening employees that it would close its facility if
the employees selected a union as their bargaining represent-
ative. It is further alleged that Respondent, by Susan
McElroy, a supervisor, violated Section 8(a)(1) of the Act by
informing employees that other employees were discharged
because of their union activities. Finally, the complaint al-
leges that Respondent discharged Casey on about January 14
because of her support for, and activities on behalf of, the
New England Health Care Employees Union, District 1199,
SEIU, AFL–CIO (the Union), thereby violating Section
8(a)(1) and (3) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with its office and place of
business located in Danbury, Connecticut (the facility), is en-
gaged in the operation of a nursing home providing skilled
nursing care. During the 12-month period ending February
28, Respondent derived gross revenue in excess of $100,000.
During the same period, Respondent purchased and received
at the facility goods valued in excess of $5000 directly from
points located outside the State of Connecticut. Respondent
admits, and I find, that it has been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and is a health care institution within the meaning of Section
2(14) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
Initially it is alleged that Respondent’s employee hand-
book violates Section 8(a)(1) of the Act. More specifically,
it is alleged that the section of the handbook entitled, ‘‘What
About Unions,’’ beginning at page 31, threatened employees
with unspecified reprisals, diminished terms and conditions
of employment, and loss of direct access to management rep-
resentatives if they selected a union as their bargaining rep-
resentative. The General Counsel alleges that the section en-
titled, ‘‘What About Unions,’’ violates the Act. It states:
We strive to create an environment where each em-
ployee is treated as an individual and as an important
participant in the operation of our facility.
We value open, direct communication where we can
talk to you and you can talk to us. We hope to keep
it this way.
For this reason, in today’s uncertain world where
there are many pressures and anxieties, we want to
keep this facility free from any artificially created inter-
ruptions which may arise when a union is on the scene.
Most health care employees have chosen not to join a
union. We think this is a commendable choice.
Mediplex LTC strongly believes that individual con-
sideration in the employee/supervisor relationship pro-
vides the best climate for your maximum development,
teamwork and the attainment of your goals and those
of the facility. We do not believe that union representa-
tion of our employees would be in the best interest of
either the employee, resident or the facility. We believe
that a union would only serve to divide, not unite, its
employees and would harm the close working relation-
ship so necessary in achieving the important objective
of quality resident care. We sincerely believe that any
outside third party would seriously impair the relation-
ship between the facility and the employees and could
retard the growth of our facility and the progress of our
employees.
We have enthusiastically accepted our responsibility
to provide you with good working conditions, good
wages, good benefits, fair treatment and the personal
respect and dignity which is rightfully yours. All this
is part of your job with Mediplex and need not be
‘‘purchased’’ at significant personal cost to you from
an outside third party.
We know that you want to express your problems,
suggestions and comments to us so that we can under-
stand each other better. You have that opportunity at
Mediplex. This can be done without having a union cut
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
off the direct communication between you and your su-
pervisor and administration. Here you can speak for
yourself—directly to us. We will listen and we will do
our best to give you a responsible reply.
This handbook was distributed to employees beginning in
about June 1992.
In about Thanksgiving 1992, Casey discussed with several
employees the idea of getting a union to represent them.
Sometime between Thanksgiving and Christmas 1992, she
called the Union and was directed to David Pickus, vice
president of the Union. She asked him what the employees
had to do to get the Union to represent them. He said that
she should speak to her fellow employees to be sure that
enough were interested and to get him a list of all employ-
ees. She spoke to many of her fellow employees and deter-
mined that there was sufficient support. She spoke to Pickus
around Christmas time and a meeting was originally sched-
uled for January 13; about the day before, one of the other
primary union supporters withdrew her support and this
meeting was canceled. The meeting was rescheduled and
took place on about January 19, after she was fired. Ann
Rogers, Respondent’s administrator, testified that she became
aware of union activity at the facility in about late November
or early December 1992. At that time, an employee and a
supervisor informed her that they had heard that aides at the
facility were discussing unions. Respondent learned definitely
about Casey’s union interest on Monday, January 11. On that
day, about 7 a.m., Casey was discussing the residents with
Susan McElroy, the supervisor on the 11 p.m. to 7 a.m. shift.
Casey testified that McElroy was complaining about the prior
evening or the prior two evenings. Casey said to her: ‘‘You
know, I’m trying to organize the Union and bring the Union
in. Would you be interested?’’ McElroy answered: ‘‘I could
never do that; besides, I’m a supervisor.’’ Casey testified
that, at that point, I ‘‘choked on my words, knew I put my
foot in my mouth.’’ McElroy testified that, on the morning
in question, Casey asked her what she would think of a
union coming to the facility. She answered that it was not
a good idea. That she had previously been a union member
and they did not help her when she needed it. In addition,
as a supervisor, she was not eligible to be in the Union.
McElroy immediately went to the nursing office and told
Elaine Brennan, the day supervisor at the facility, of what
Casey had said to her. She also left a note for Pam Engingro,
the director of nursing, telling her what Casey said. Engingro
called her about 2 hours later and McElroy told her what
Casey said to her and what she told Casey. Sometime later
that morning, Engingro told Rogers about Casey’s comments
to McElroy.
Rogers conducted meetings with groups of employees on
January 25 and 26. The sign-in sheet for these meetings indi-
cates that there were four meetings on January 25 and one
meeting on January 26. The number of employees attending
ranged from a low of 5 to a high of 16. It is alleged that
at these meetings Rogers interrogated employees about their
union activities, informed its employees that it would be fu-
tile for them to select a union as their collective-bargaining
representative, threatened employees with the loss of direct
access to management representatives if they selected the
Union as their bargaining representative, threatened employ-
ees with discharge if they engaged in a strike, and threatened
the employees that it would close the facility if they selected
the Union as their bargaining representative. Rogers testified
that the meetings had a dual purpose: to introduce Dee
Skidmore as the new director of nursing and to tell the em-
ployees that she had heard rumors at the facility about a
union ‘‘and to give them some facts on unions.’’ She testi-
fied that she did not ask the employees if they were for or
against the Union and did not ask them if they were involved
with the Union. Skidmore told the employees about how
union stewards work. She said that unions often appoint
stewards or representatives and ‘‘their preference is that you
go to that person rather than go directly to management.’’ At
these meetings she told the employees that during a strike an
employer can bring in permanent replacements to cover the
strikers’ positions. In this regard she told them of a situation
at a different nursing home in Connecticut, since purchased
by Respondent. Under the former management, the employ-
ees struck, the residents were transferred elsewhere, and the
facility was temporarily closed. In answer to questions spe-
cific to the allegations of the complaint, Rogers denied say-
ing everything that is alleged in the complaint.
A number of the employees also testified about these
meetings. The testimony of the employees, and Rogers, is
that she had notes in her hand and that she referred to these
notes in speaking, but did not read from the notes. Eileen
Barrett, who has been employed by Respondent as a certified
nurses aide (CNA) for about 8 years, testified that Rogers
began the meeting by saying that she heard that union rep-
resentatives were soliciting employees and she asked if any-
body had been approached by a union representative. She
said: ‘‘But, you really don’t have to answer that question.’’
All those present answered no, but said that they had heard
of other employees who had been approached. She said that
having a union representing the employees ‘‘would lead to
a very cold working environment because if we had a prob-
lem we couldn’t go talk to her. We wouldn’t be allowed to,
we would have to talk to a Union representative that would
talk to her.’’ The difference, she said, was that now the em-
ployees are free to talk to anybody in administration. She
also said that if a majority of the employees signed cards for
the Union, union dues could be deducted directly from their
paycheck and ‘‘the rest of us would have no choice but to
join the Union whether we wanted to or not.’’ She said that
if the employees joined the Union and the Union called a
strike, the employees would have to strike and put their pa-
tients in jeopardy. If they didn’t strike, the Union could fine
them. She told them of the situation that had occurred at the
nursing home that has since become Mediplex of Westport
(and owned by Respondent). The union called a strike under
the prior management and the nurses aides went on strike.
They were replaced by new workers and terminated and the
home closed and later opened under Respondent’s ownership.
Willia Brown, who has been employed by Respondent as a
CNA for 3 years, testified that Rogers began the meeting by
saying that she called the people together to talk about the
Union and that she knew that they were soliciting the em-
ployees and handing out pamphlets, but that they wouldn’t
be fired for talking to the union representatives, but that if
the Union approached them, they should tell her or some-
body else from administration. If the Union became their
bargaining representative, they would have to pay union
dues, which could be deducted from their pay, and if the
475MEDIPLEX OF DANBURY
2 Near the conclusion of the hearing, Skidmore testified about a
situation where Casey allegedly failed to apply sylvadine lotion to
a resident. As this was not referred to earlier as a cause of her dis-
charge, and as Skidmore testified that it was not a reason for her
discharge, it will not be discussed further.
3 As January 12 was Casey’s last day of employment with Re-
spondent, this was obviously a mistake, and the date was really Jan-
uary 12.
Union came in the ‘‘family’’ atmosphere at the facility
would be no more; they would no longer have the ‘‘close-
ness as employees’’ with the ability to speak directly to her.
She or Skidmore then said that with a union there was al-
ways the possibility of a strike. She told of a situation where
a union called a strike, and the home closed and later re-
opened.
Nancy Torpey, who has been employed by Respondent for
5 years as a CNA, testified that Rogers began by introducing
Skidmore as the acting director of nursing. She said that she
had heard that the Union was trying to organize the employ-
ees and asked if any of them had been contacted by the
Union. She said that if the Union asked them to sign cards,
they did not have to sign them, and if they were worried or
scared about it, they could come to her. She said that if the
Union became their representative they would no longer be
able to have these informal meetings and they would no
longer be able to speak directly to her, they would have to
go through a union representative. She said that the employ-
ees at the Westport home went on strike and the patients
were moved and the home was temporarily closed. Subse-
quently, the home reopened with permanent replacements.
She asked them if they could leave their patients and go out
on strike if the Union told them to do so because they would
have to do so. Lillian Grube, who has been employed by Re-
spondent as an LPN for 14 years, testified that Rogers told
them that with a union they could not speak directly to man-
agement, they would have to go through the union delegate
who would then speak to management. She or Skidmore said
that if the Union called a strike, they would have to leave
their patients and walk on a picket line.
The final 8(a)(1) allegation is that on about January 27,
McElroy informed employees that other employees were dis-
charged because of their union activities. Carole Richter,
who has been employed by Respondent as an LPN for 8
years, testified that she knows Casey, but usually works dif-
ferent days. She didn’t learn of Casey’s discharge until about
January 27, 13 days after she was fired. Sometime that morn-
ing at about 7 a.m., somebody told her that Casey was fired.
An employee asked why she was fired and another employee
said that she heard that Casey was fired because she had ne-
glected a patient. Shortly thereafter, when Richter was alone
with McElroy, McElroy told her that Casey asked her if she
would be interested in meeting with a union representative;
she told Richter: ‘‘You know, I had to take that to the of-
fice.’’ She did not tell Richter that Casey had been fired be-
cause of her union activity.
The final allegation here is that on about January 14, Re-
spondent terminated Casey because of her union activity in
violation of Section 8(a)(1) and (3) of the Act. Casey had
been employed by Respondent as an LPN since 1984. At the
time of her discharge on January 14, she was working the
7 a.m. to 7 p.m. shift 3 days a week on the third floor west
wing. Prior to 1992, the third floor was an ICF level of care
(intermediate care) meaning that the patients were ambula-
tory and required less care. Sometime that year, Respondent
began bringing skilled patients on the floor, i.e., patients re-
quiring more care and supervision. This change required an
additional nurse on the floor and Casey was that nurse. Re-
spondent admits that Casey was fired on January 14. It de-
fends that she was fired for two reasons: falsification of
records in not changing a resident’s dressing and an inappro-
priate response to a resident who had fallen on the floor.2
Because of the necessity for confidentiality of patient’s
names in the industry, the patient involved in the alleged fal-
sification situation will be referred to as patient 1 and the pa-
tient who fell and allegedly was not properly cared for will
be referred to as patient 2.
Skidmore was the agent of Respondent principally in-
volved with these situations although she neither fired Casey
nor did she recommend that Casey be fired. She was made
aware of the situations, became involved in them, and in-
formed Engingro of the situations. Casey was fired after
Rogers informed Respondent’s human resources department
of the situations.
Skidmore testified that in late December 1992 or early
January, two employees and McElroy informed her of their
‘‘concern’’ that dressings were not being done. McElroy tes-
tified that she informed Skidmore of these rumors ‘‘a few
weeks’’ prior to January 11.
On Sunday, January 10, Skidmore instructed June Fisher,
the 3 to 11 p.m. supervisor, to place an identifiable mark on
the dressing on patient 1 in order to determine whether
Casey changed it the following day. The treatment proscribed
for patient 1 was a dressing and bacitracin ointment two
times a day. Skidmore worked the 7 a.m. to 3 p.m. shift on
Monday, January 11; Casey worked from 7 a.m. to 7 p.m.
that day. When Skidmore checked patient 1 at about 3 she
saw that the marked dressing was still on the patient, al-
though the patient’s Kardex, with Casey’s initials, indicated
that the treatment had been done. On that same day she told
the director of nursing of what had occurred and she wrote
a note to Casey’s file regarding patient 1:
It was observed that the dressing order on Patient
1—Bacitracin F/B Dressing BID. The dressing was
noted to be dated 1/10/93 . . . .
The 3–11 Supervisor placed that marking at my re-
quest. I observed on 1/11/93 that the actual dressing
was not changed during 7–3 shift. Myself and DNS re-
checked the dressing at 3 p.m. It still had not been done
at that time. The treatment Kardex reflects that Dolores
Casey LPN signed that she did the treatment.
On January 11, Skidmore had the dressing on patient 1
marked again. She testified that when she last checked the
dressing at 3 p.m. that day, it had not been changed and she
informed Engingro that the dressing had not been changed on
January 12. However, at 3:30 that day Casey, who was,
again, working the 7 a.m. to 7 p.m. shift, removed the dress-
ing, replaced it with a bandaid, and wrote on the Kardex:
‘‘1/13/933 bandaid on—area healed.’’ January 12 was the
seventh and final day that this treatment had been prescribed.
These were the only occasions that Skidmore ever marked a
dressing while she was employed by Respondent. She testi-
fied that she did not mark a dressing previous to January 10
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
because that was the first occasion that a doctor had pre-
scribed a dressing change to be done on the 7 a.m. to 3 p.m.
shift. In addition, she never spoke to Casey about her failure
to change these dressings nor did she direct any other nurse
to change the dressing that Casey had, apparently, failed to
change.
Rogers testified that on January 11 Engingro told her that
they had some evidence that Casey was not doing her treat-
ments and that Skidmore had marked a dressing to check the
truth of the allegation. Later that day Engingro told Rogers
that Casey had not changed the dressing that day and that
they were going to mark the dressing again to see if there
was a pattern. She said that they were giving Casey the ben-
efit of the doubt. On the following afternoon, Engingro told
her that Casey had not changed the dressing on that day as
well, although she had signed that it was done. Rogers then
called Alan Zampini, Respondent’s director of operations for
the State of Connecticut, and told him of these facts.
Zampini told her to get all the facts together and call him
the following day. Prior to calling him on January 13, ‘‘an-
other incident came to light’’—the incident involving patient
2.
Casey testified that since only some of the 30 residents on
her wing were skilled-care patients, ‘‘there weren’t a lot of
treatments.’’ Only about 7 of the 30 residents required spe-
cific treatments. Her daily procedure, prior to her discharge,
was to look over the residents’ Kardexes, note what had to
be done, sign the Kardex, and do the rounds and treatments.
She testified that she and the other nurses did not take the
Kardexes with them when they did treatments, because they
were large and cumbersome and didn’t fit well on the medi-
cation cart. The only time that she and a lot of the other
nurses took the Kardexes with them was when the state in-
spectors were present. She was asked whether she did the
treatment on patient 1 on January 11; she testified: ‘‘I don’t
know’’ and ‘‘[n]ot to my knowledge.’’ On the afternoon of
January 12, she cut off the dressing on patient 1, saw that
it was completely healed, put medication and a band-aid on
it, and wrote that on the Kardex. This was the final day indi-
cated for treatment. Lillian Grube, who has been employed
by Respondent as an LPN for 14 years, and was working on
three east in January, testified that each morning, she usually
sits at her desk looking at the Kardexes for her treatments
and signs for those treatments at that time. If a patient re-
fuses treatment she circles it when she returns. She does not
take the Kardexes with her during treatments, because ‘‘it’s
just awkward to carry the thing with you . . . .’’ She has
been following this procedure during the entire period of her
employment at the facility. She does take her Kardexes with
her during treatments when state inspectors are at the facility.
The other incident that allegedly contributed to Casey’s
discharge involved patient 2, who often fell and had to be
assisted back on his feet. Skidmore was principally involved
in this situation as well, but, again, not the ultimate deter-
mination to fire Casey because of it. Skidmore testified that
she was made aware of this situation on January 13 by Robin
Sardone, a nurses aide, who began her employ with Re-
spondent 2 weeks earlier. On that day she was meeting with
Sardone who, as a new employee, ‘‘needed the guidance.’’
Sardone ‘‘broke down, gave me information about an inci-
dent, some incidents with a resident.’’ She asked Sardone to
put this in writing, which she did:
On Thursday 1–7–93 I heard a resident yelling for
approximately 30 minutes . . . . I went into room 328
and found [patient 2] hanging from chest up off the bed
with the rest of his body on the floor. I noted a blood
spot on the sheets. I assisted the resident back into bed
first lying on stomach and then positioned on his back.
I went to the front desk to report to the blonde nurse
[apparently Casey] that the resident in 328 was on the
floor, bleeding, and I helped him back to bed. The
nurse responded: ‘‘He’s always on the floor.’’ Why did
you pick him up? She proceeded to yell at me while
walking to resident room for reporting it. I asked her
why wasn’t I right in reporting it . . . This occurred
in the afternoon.
Sardone also prepared a note of an incident with the same
patient falling on January 8:
I went to report this to the blonde nurse that he had
fallen and she yelled at me. The nurse went to the room
yelling at the resident while laughing too. At the same
time CNAs already in the room yelled: ‘‘You fell on
the floor again and this time you’re staying on the
floor. I’m not picking you up. Maybe this will teach
you a lesson.’’ The blonde nurse responded, just leave
him on the floor and she left the room for 15–20 min-
utes . . . . The resident stayed on the floor for 15–20
minutes. The charge nurse—blonde—continued to yell
at me. I left the unit at 3 p.m. The resident was still
on the floor and crying to be picked up.
Skidmore testified that after speaking to Sardone, and getting
these reports, she did not speak to Casey, Grube, the day su-
pervisor, or any of the CNAs who were involved.
Sardone testified that on January 7 at about 2:30 p.m. she
saw patient 2 hanging from his bed, half on and half off. She
testified that she saw that he had removed the restraints that
had been put on him. Prior to Casey’s telling her to check
on the resident she heard him screaming for help for about
30 minutes. Sardone lifted him back into bed from his hang-
ing position and went down the hall to report the incident
to Casey. She initially testified that it took Casey a long time
before she got to the resident’s room; subsequently, she testi-
fied that it took a ‘‘couple of minutes.’’ When she got there
she yelled at Sardone for moving the resident. Sardone said
that she didn’t feel it was appropriate to have him continue
hanging from the bed and Casey asked her why she bothered
to pick him up. She testified that Casey then yelled at the
resident, but she doesn’t remember what was said because
she walked away at that time. On the following day, patient
2 fell on the floor while Sardone was in the hallway.
Sardone and some other aides ran into the room and patient
2 asked them to help him. Sardone went to tell Casey and
Casey yelled at her for reporting the situation and went to
the room with her and told them not to pick him up, but to
keep the resident on the floor and let him learn from what
he did. The resident kept asking them to pick him up, but
they refused. Sardone told them that it wasn’t right to let him
remain on the floor, but to no avail, and he remained there
for about 10 to 15 minutes. Sardone testified that over that
weekend, January 9 and 10, she thought about the incidents
and ‘‘felt miserable about it.’’ When she reported for work
on Monday, January 11, she told Skidmore what happened
477MEDIPLEX OF DANBURY
and Skidmore told her to put the incidents in writing, which
she did. She testified that she could not remember whether
she went to Skidmore’s office to tell her of the incidents or
whether she told Skidmore of these incidents during coun-
seling sessions that Skidmore was conducting with her.
Casey testified that she was familiar with patient 2; he has
been falling since he has been a resident at the facility. He
fell many times on January 7 and 8, when Casey worked two
12-hour shifts. She does not believe that she witnessed any
of the falls, but, on each occasion, a nurses aide found him
sitting on the floor. On none of the occasions was he injured,
‘‘which kind of made me suspicious.’’ His doctor was regu-
larly evaluating him and trying different medicines that
would make him more steady. On each occasion that he fell
on those days, she evaluated him (with the LPN on three
east, Grube) prior to picking him up off the floor, which is
the accepted procedure when a patient falls. The evaluation
includes temperature, pulse, respiration, and blood pressure.
In addition, the supervisor, family, and personal physician
were notified. She testified that on one of the occasions with
patient 2, Sardone came to her and said that the patient al-
most fell out of bed, but she got him back into bed. She
asked Sardone: ‘‘What do you mean almost fell?’’ She said
that he started to fall, but she got a hold on him. Casey then
asked her if he hit the floor, and Sardone answered that he
almost fell. Casey then explained that the difference was im-
portant because, if the resident hits the floor, reports have to
be prepared and people notified. Casey ended it by saying,
‘‘If he almost fell, then he didn’t fall. That doesn’t count
. . . you got him back in bed, that’s fine.’’ She testified that
she never yelled at Sardone during this incident; she did ask
her repeatedly whether he fell or did not fall and she never
refused to check on patient 2. As to whether she ever left
patient 2 lying on the floor during the 2 days in question,
she testified that on some occasions when residents fall, she
would put a pillow under the resident’s head and leave them
on the floor (with an aide present) while she went to get a
supervisor or, possibly, to call for an ambulance if there was
a serious injury:
under no circumstances would I go in and see a patient
that fell on the floor and then we’re all going to leave
the room and leave them there, no, but they can lay on
the floor. We’ve had fractured hips where they lay on
the floor for a half an hour if necessary. Not alone I
might add.
Casey testified further that she never asked an aide why she
helped a resident or why didn’t she leave him on the floor.
As to whether she ever told anybody that she was sick and
tired of the patient falling, she testified that she doesn’t know
and she didn’t believe so, but ‘‘I was tired of him falling.’’
Rogers testified that sometime during this period, Casey told
her that she was sick and tired of this resident falling. As
to whether in January a patient fell out of bed and was cry-
ing and pleading for help and she just left him on the floor,
Casey testified: ‘‘Absolutely not.’’ Her answer was the same
to the question of whether she laughed at a patient who was
lying on the floor crying. Casey also testified that on either
January 7 or 8, because patient 2 had fallen so many times
she and the nursing supervisor put him in his bed with the
sides up. After he climbed over the side rails she became
fearful that he would injure himself and she put a vest re-
straint on him. Later that day his grandson came to visit him
and began screaming at Casey when he saw the restraint on
him. The resident’s chart provided for the use of restraint if
necessary. The grandson threatened to have her fired for put-
ting the restraint on him. Rogers testified that this complaint
did not contribute to Respondent’s decision to fire Casey.
She wrote up the entire incident in the resident’s file. Casey
testified that she later received a letter of apology from the
family for the grandson’s actions.
Barrett testified that she was present on one occasion when
patient 2 fell; he was lying on the floor with a pillow under
his head and they were waiting for a supervisor to check him
out. Casey never said anything to the resident about leaving
him on the floor. It was on that day that the resident’s grand-
son came to visit him. Richter testified that the proper proce-
dure to follow with a resident who fell out of bed is to ex-
amine and assess the patient prior to moving him. Torpey,
who was working on the floor on one of the days that patient
2 kept falling, testified that he fell on a number of occasions
that day. On that day, his grandson visited him and when he
saw that he was wearing a restraint, he ‘‘made a big commo-
tion over it, threatening to have Dolores fired, to have her
job.’’ Casey attempted to explain that he was being re-
strained for his own safety, but the grandson would not lis-
ten. When the restraint was removed (presumably as a result
of the grandson’s actions) patient 2 fell again. Torpey,
Casey, Grube, Sardone, and the supervisor (who arrived
later) were present. When they arrived, Sardone asked why
they didn’t get him off the floor. It was explained to her that
they had to check him over first and get all vital signs before
picking him up and putting him back in bed. Casey put a
pillow under his head while he was on the floor. Casey never
yelled at Sardone or patient 2, nor did Casey leave him on
the floor unattended. Grube testified that she was present on
the third floor on the 2 days in question when patient 2 fell
on a number of occasions. On one of these days he fell three
times and on each occasion both she and Casey went to as-
sess his condition. On each of these occasions he remained
on the floor until they completed their evaluation of his con-
dition. Then they picked him up off the floor. During this
period, Casey never yelled at the patient. At one point, she
said ‘‘jokingly’’ to him: ‘‘My God, this is the third time. We
should leave you there.’’ She said it ‘‘kiddingly’’ and he
laughed.
There was a substantial amount of testimony about
Sardone and her working history at the facility. Skidmore
testified (reluctantly, it appeared to me) that Respondent had
problems with Sardone’s work performance. In addition, she
received complaints from other CNAs and nurses about
Sardone. On one occasion, she met with the CNAs to discuss
their complaints about Sardone. In addition, she or other su-
pervisors met with Sardone for counseling sessions on Janu-
ary 4, 5, 6, 11, and 14. Torpey testified that she had a lot
of problems with Sardone, who lied, cried, and did not per-
form her job properly. Torpey and some of the other CNAs
asked to speak to management about their problems with her
and met in about February with Skidmore about her. The
employees complained that they couldn’t work with her any-
more, and Skidmore told them that she knew that Sardone
lied. Grube also testified about problems that she had with
Sardone: ‘‘Very insecure. I several times caught her lying.’’
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 By motion to strike portions of Respondent’s brief, dated October
21, the General Counsel requested that references in Respondent’s
brief to exhibits that I rejected at the hearing be stricken from the
brief and that I not rely on these rejected exhibits or the arguments
based on them. As I conclude that my original rulings rejecting these
exhibits were correct, the General Counsel’s motion is granted and
the exhibits, and the arguments in the brief based on the exhibits,
will not be considered.
She informed her supervisor of these problems, and some-
time after Casey was fired Skidmore met with some employ-
ees to discuss Sardone. As stated above, Sardone was termi-
nated on March 22 for the reason: ‘‘Terminated due to in-
ability to comply with job description and perform duties
thoroughly and safely.’’
Rogers testified that on Wednesday, January 13, the pa-
tient 2 ‘‘incident came to light.’’ Engingro told her what
Sardone had told Skidmore about patient 2. On that day she
spoke to Zampini and told him of the situations involving
Casey and patients 1 and 2; she recommended that Casey be
fired.
Casey was fired on Thursday, January 14. Her final day
of work for Respondent was Tuesday, January 12; she was
next scheduled to work on Saturday, January 16. On about
January 13, she received a call from Elaine Brennan, one of
the supervisors at the facility, saying that Engingro wanted
to speak to her; a meeting was arranged for January 14 at
2 p.m. in Engingro’s office. Casey, Engingro, and Skidmore
were at this meeting. Engingro told her that since she trans-
ferred to three west her work performance was not up to par:
treatments had not been performed or were not performed in
a timely fashion, and she had been negligent in her work.
Additionally, one of her patients fell and she left him lying
on the floor for 15 minutes. Casey told Engingro that this
allegation was a lie. Engingro told her that the allegations
were so serious that she was being terminated. Casey asked
about being given a warning rather than being fired and
Engingro said that the allegations were so serious that termi-
nation was warranted.
As stated above, Casey has been employed by Respondent
since 1984. The General Counsel moved into evidence her
final three evaluations from Respondent, dated December
1991, October 1990, and October 1989. These evaluations
have 10 categories and 5 boxes for each. In addition, there
is an overall evaluation at the end of each appraisal with five
categories from unsatisfactory to outstanding. In Casey’s
1989 evaluation she received one check in the highest cat-
egory and nine checks in the next best category. Her overall
evaluation was the highest category—outstanding. In the
1990 evaluation, she received the highest rating in one cat-
egory, the second highest rating in seven categories, and a
check mark between the highest and second highest rating in
the remaining two categories. She received an above average
overall rating. Her final evaluation in December 1991 gave
her the highest rating in three categories and the second
highest rating in the remaining seven categories; there was
no overall evaluation in this appraisal. Respondent moved
into evidence three written warnings and one verbal warning
that Casey received from Respondent. They are dated Sep-
tember 1986, September 1989, September 1989, and May
1990.
IV. ANALYSIS
Initially,4 the General Counsel alleges that the contents of
Respondent’s employee handbook, more particularly the por-
tion entitled, ‘‘What About Unions,’’ at page 31, violates
Section 8(a)(1) of the Act. I disagree. I find that the message
in this portion of the employee handbook comes within the
protection of Section 8(c) of the Act. It contains no threats
and does not state that Respondent will take any action in
retaliation for the employees’ union activity. Rather, in it,
Respondent states why it believes that the employees and the
facility are better off without the Union, something Respond-
ent is entitled to do. I shall therefore recommend that this
allegation be dismissed.
It is next alleged that Rogers and Skidmore’s speech to the
employees on about January 25 violated Section 8(a)(1) in a
number of ways. Not surprisingly, there are a number of
versions of Rogers’ speech, even among the General Coun-
sel’s witnesses. This may be due to the fact that there were
five separate meetings that Rogers had with the employees.
Barrett, whom I found to be a credible, but nervous, witness,
testified that Rogers began the meeting by saying that she
heard that union representatives were soliciting employees
and asked if anybody had been approached by the Union,
adding, ‘‘But you really don’t have to answer that question.’’
Torpey, who I found to be a very direct and credible witness,
testified that Rogers said that she heard that the Union was
trying to organize them, and she asked if any of them had
been contacted by the Union. Rogers testified that she did
not ask employees if they were in favor of, or were involved
with, the Union. Although I did not find Rogers to be an in-
credible witness, I have no difficulty crediting the testimony
of Barrett and Torpey over her testimony. Barrett and Torpey
attended the same meeting with Rogers, so I find that in ad-
dition to asking the employees if they had been approached
or contacted by the Union, she told them that they ‘‘really’’
didn’t have to answer the question. In Rossmore House, 269
NLRB 1176 (1984), the Board said that in determining
whether an interrogation violates Section 8(a)(1) of the Act
they will look to ‘‘whether under all of the circumstances the
interrogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act.’’ I find that under all the
circumstances here, Rogers’ statements to the employees rea-
sonably tended to coerce them to cease engaging in union ac-
tivities. Rogers was the administrator of the facility. Ten
days earlier the lead employee in the union drive had been
fired. When Rogers asked them if they had been contacted
or approached by the Union, it is reasonable to assume that
they would feel coerced and think twice about engaging in
union activities. That all denied having been contacted by the
Union reinforces this finding. Rogers’ statement that they
really didn’t have to answer her question does not lessen this
effect. I therefore find that Respondent violated Section
8(a)(1) of the Act by interrogating its employees about their
union activities.
It is next alleged that, at this meeting, Respondent in-
formed its employees that it would be futile for them to se-
lect the Union as their representative. I can find no evidence
unrelated to one of the other allegations here to support this
allegation. The General Counsel’s brief appears to support
this finding. In his brief, the General Counsel states: ‘‘The
entire tenor of the meetings with employees held by Rogers
479MEDIPLEX OF DANBURY
and Skidmore was designed to instill in the employees a
sense of futility regarding unionizing.’’ Each of the other al-
legations has been, and will be, discussed separately; I rec-
ommend that this ‘‘summary’’ allegation be dismissed.
The next allegation is that, at this meeting, Respondent
threatened employees with the loss of direct access to man-
agement representatives if they selected a union as their bar-
gaining representative. Barrett testified that Rogers said that
if a union represented them it would lead to a very cold
working environment; if they had a problem, they would not
be allowed to talk directly with her. They would have to talk
to the union representative, who would then talk to her.
Brown testified that Rogers said that if the Union came in
the facility would cease to have a ‘‘family’’ atmosphere, and
the employees would no longer have the ‘‘closeness as em-
ployees’’ and the ability to speak directly to her. Torpey tes-
tified that Rogers said that if the Union became their rep-
resentative the employees would no longer be able to have
these informal meetings, and they would not be able to speak
directly to her, they would have to go through the Union.
Grube testified that Rogers said that with a union they could
not speak directly to management, they would have to go
through a union delegate who would then speak to manage-
ment. Rogers testified that at these meetings she told the em-
ployees that unions often appoint stewards or representatives
and ‘‘their preference is that you go to that person rather
than go directly to management.’’ As stated above, I credit
the testimony of the employees over that of Rogers. I might
add that I found Grube to be a totally credible and believable
witness.
In Tri-Cast, Inc., 274 NLRB 377 (1985), the Board stated:
‘‘There is no threat, either explicit or implicit, in a statement
which explains to employees that, when they select a union
to represent them, the relationship that existed between the
employees and the employer will not be as before.’’ As the
court stated in NLRB v. Sacramento Clinical Laboratory, 623
F.2d 110, 112 (9th Cir. 1980): ‘‘[I]t is a ‘fact of industrial
life’ that when a union represents employees they will deal
with the employer indirectly, through a shop steward.’’ See
also New Process Co., 290 NLRB 704 (1988). I find that
Rogers’ statements constitute a reasonable prediction of the
effect that unionization would have in the work atmosphere,
rather than constituting a threat of employer action in retalia-
tion for their union activity. I, therefore, recommend that this
allegation be dismissed.
It is next alleged that at these meetings Rogers threatened
employees with discharge if they engaged in a strike and
threatened to close the facility if the employees selected the
Union as their bargaining representative. Barrett testified that
Rogers said that if the employees joined the Union and they
called a strike, the employees would have to strike and put
their patients in jeopardy. If they didn’t strike, the Union
could fine them. She told the employees of the situation at
the home that is presently Mediplex of Westport. The union
called a strike and the aides went out, were replaced by new
workers, and were then terminated. The home then closed
and subsequently reopened as Mediplex of Westport. Brown
testified that Rogers or Skidmore said that with a union there
was always the possibility of a strike and she told them of
a situation where a union called a strike and the facility
closed. Torpey testified that Rogers asked the employees if
they could leave their patients and go on strike if the Union
told them to do so, because they would have to do so if the
Union told them to strike. She also said that employees at
the Westport home went on strike and the patients were
moved and the home was temporarily closed and later re-
opened with permanent replacements. Grube testified that
Rogers told them that if the Union called a strike they would
have to leave their patients and walk a picket line. She also
told the employees of a situation where the employees of a
home went on strike and the home had to close and move
the patients out, although she could not remember too much
about this subject. Rogers testified that she told the employ-
ees that during a strike an employer can bring in permanent
replacements to cover strikers’ positions, and that in the
Westport situation, under the prior management, the employ-
ees struck and the facility was temporarily closed and the pa-
tients were transferred elsewhere.
There is a very fine line between what is a lawful state-
ment and what is an unlawful statement when an employer
tells its employees of an employer’s rights in replacing strik-
ing employees. In Eagle Comtronics, 263 NLRB 515 (1982),
the Board set out the parameters that an employer must fol-
low to stay within the law in these cases. As the Board stat-
ed in Fern Terrace Lodge, 297 NLRB 8 (1989):
In Eagle Comtronics the Board recognized that an em-
ployer cannot be expected to fully articulate employees
Laidlaw rights in every discussion concerning economic
strikes. The Board stated that an employer ‘‘may ad-
dress the subject of strike replacement without fully de-
tailing the protections enumerated in Laidlaw, so long
as it doesn’t threaten that, as a result of a strike, em-
ployees will be deprived of their rights in a manner in-
consistent with those detailed in Laidlaw.’’
This rule can best be understood and appreciated by the fact
that some labor lawyers do not fully understand the rules set
forth in Laidlaw; how then can we insist that employers dis-
cussing the issue with their employees explain all the nu-
ances of this issue? The rule then is that in these situations
an employer violates the Act if its comments may be fairly
understood as a threat of reprisal and/or if they were explic-
itly coupled with such threats. Gaso Pumps, 274 NLRB 532
fn. 2 (1985), and Mack’s Supermarkets, 288 NLRB 1082,
1091 (1988).
At this meeting, Rogers discussed strikes, permanent re-
placements, and the Westport situation. In discussing the
possible replacement of strikers, she did not fully detail the
protections of Laidlaw as she was not obligated to do. She
gave the employees a brief summary of her view of the law.
She also told them about the events at the Westport home,
which was not owned by Respondent at that time. On the
basis of all the evidence here, I find insufficient evidence of
explicit or implicit threats of Respondent action should the
employees choose to be represented by the Union. I therefor
recommend that these allegations be dismissed.
The final 8(a)(1) allegation is that on about September 27,
McElroy informed employees that other employees were dis-
charged because of their union activities. The facts of this al-
legation are undisputed. When Richter came to work on Jan-
uary 27 a fellow employee told her that Casey had been fired
about 2 weeks earlier. When somebody asked why she was
fired, a fellow employee said that she heard that Casey was
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fired because she neglected a patient. Shortly thereafter that
morning, while Richter was alone with McElroy, McElroy
told Richter that Casey had asked her if she would be inter-
ested in meeting with a union representative and she ‘‘had
to take that to the office.’’ The General Counsel’s brief al-
leges that this statement implies that Casey was discharged
for her union activities. McElroy was making a factual state-
ment to Richter; she did not tell her that Casey was fired be-
cause of her union activities. She only told her of her en-
counter with Casey on January 11. To allege that by this
statement McElroy was telling Richter that Casey was fired
because of her union activities is to stretch the statement be-
yond its reasonable parameters. I therefore recommend that
this allegation be dismissed.
The final allegation is that by discharging Casey on Janu-
ary 14, Respondent violated Section 8(a)(1) and (3) of the
Act. Under the rule set forth in Wright Line, 251 NLRB
1083 (1980), the General Counsel has the initial burden of
making a prima facie showing to support the inference that
the employee’s protected conduct was a ‘‘motivating factor’’
in the employer’s decision. If that has been established, the
burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct. There is absolutely no question that the
General Counsel has sustained his initial burden here. Casey
had been employed by Respondent for almost 9 years; in her
last three evaluations she was rated above average and out-
standing. During the period of her employment, Casey had
received only four warnings, from September 1986 to May
1990. On Monday, January 11, she asked McElroy, a super-
visor, if she was interested in joining the Union. Shortly
thereafter, McElroy told Brennan, who told Engringo, who
told Rogers about what Casey had said to McElroy. The fol-
lowing day was Casey’s final day of employment with Re-
spondent. It is difficult to imagine a more obvious initial
finding of a violation under Wright Line, supra, and I so
find.
The final issue then is whether Respondent has satisfied its
burden that it would have fired Casey even if she had not
been active for the Union. Respondent defends that it fired
Casey because of her actions involving patient 1 and patient
2. These are two separate and distinct incidents evolving at
different times. The situation with patient 1 came to Re-
spondent’s attention at the end of December 1992; Sardone
first told Skidmore about the patient 2 incident on January
13. The credible evidence establishes that when the LPNs do
their treatments, they determine what treatments have to be
performed for their 30 residents and sign the Kardexes, but
do not usually take the Kardexes with them when they do
the treatments. This procedure is not unreasonable consid-
ering the testimony of Grube and Casey that the Kardex is
awkward to carry and does not fit well on the medication
cart. Casey signed the Kardex on January 11 that she did (or
would) change the dressing on patient 1. She testified that
she didn’t know whether she actually did the treatment or
whether she forgot to do it after signing the Kardex ahead
of time. Since I found Skidmore to be a fairly credible wit-
ness (although one who was reluctant to make admissions
during questioning by the General Counsel), I find that
Casey did not do the treatment on January 11. She did the
treatment on January 12, but at 3:30 p.m. rather than during
the 7 a.m. to 3 p.m. shift.
In contrast to Casey’s nonfeasance as regards patient 1, I
find no credible evidence to establish any impropriety toward
patient 2. The only testimony offered by Respondent in this
regard was by Sardone, who I found to be an incredible and
unbelievable witness. In contrast to her testimony, the Gen-
eral Counsel presented the more believable testimony of
Casey, Barrett, Torpey, and Grube, each of whom were cred-
ible and believable witnesses. I therefore find that the evi-
dence fails to support any finding that Casey mistreated pa-
tient 2.
The record here convinces me that Respondent was look-
ing for a way to ‘‘get’’ Casey. Even as regards patient 1, it
appears to me that Respondent used this situation as a pretext
for a reason to fire her. At 3 p.m. on January 11 and 12,
Skidmore saw that the marked dressing had not been
changed. On the following day Respondent decided to fire
Casey even though she did the treatment at 3:30 p.m. on Jan-
uary 12. Prior to making this decision, they never discussed
the situation with Casey, nor did they attempt to get any
input from other nurses on the floor. It appears to me that
an employee of 9 years with good evaluations deserved more
than that. In addition, Respondent stressed that her failure to
do the treatment was a serious offense, yet Skidmore and
Rogers did nothing to correct Casey’s nonfeasance with the
patient. Rather, they seemed interested only in what Casey
did rather than how it affected the resident. The situation in-
volving patient 2 is even more obvious. Skidmore and Rog-
ers accepted as true the unsupported word of Sardone who,
at the time, had been employed by Respondent for 2 weeks.
During that 2-week period, other employees had complained
to Skidmore about Sardone, her lying and her crying, and
Skidmore had counseled her on a number of occasions. Yet
Skidmore accepted her word, rather than questioning Barrett,
Torpey, or Grube, who had direct knowledge of the incident
and had been employed at the facility for a considerable pe-
riod.
The ultimate question then is why did Respondent act this
way toward Casey? Not properly investigating allegations
against her. Not giving her an opportunity to answer these
allegations. Seemingly being indifferent to the resident’s con-
dition and only being interested in finding a reason to dis-
cipline Casey. Not giving her a warning or a final warning,
but firing her with no advance warning. The timing of these
actions leads to the inescapable conclusion that Respondent
fired Casey because of her union activities. Casey spoke to
McElroy about the Union at about 7 a.m. on Monday, Janu-
ary 11. Although Skidmore testified that the first dressing
was marked the prior evening, the remaining action, and ex-
treme haste on the part of Respondent, took place after they
learned of Casey’s union activity. I find that Respondent’s
actions toward Casey to be so extreme as to only be explain-
able as a response to her union activities. I find that Re-
spondent’s reliance on the patients 1 and 2 incidents was a
pretext; that Casey was fired because of her activities on be-
half of the Union, which Respondent became aware of on the
morning of January 11. I therefore find that by firing Casey
on January 14, Respondent violated Section 8(a)(1) and (3)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and is a
481MEDIPLEX OF DANBURY
5 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.
6 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.’’
health care institution within the meaning of Section 2(14) of
the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by inter-
rogating its employees regarding their union activities.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by firing Dolores Casey on January 14, 1993.
5. Respondent did not violate the Act as further alleged in
the amended complaint. Having found that Respondent has
engaged in certain unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies
of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As I found that Respondent unlawfully discharged Casey
on January 14, 1993, I shall recommend that Respondent be
ordered to offer her immediate reinstatement to her former
job or, if that position no longer exists, to a substantially
equivalent position, without prejudice to her seniority and
other rights and privileges, and to expunge from its files any
reference to the discharge. It is also recommended that Re-
spondent be ordered to make Casey whole for any loss she
suffered as a result of the discrimination against her. Back-
pay shall be computed in accordance with F. W. Woolworth,
90 NLRB 289 (1950), and 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 recommended5
ORDER
The Respondent, Mediplex of Danbury, Danbury, Con-
necticut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union activities.
(b) Discharging or otherwise discriminating against its em-
ployees, because of their activities on behalf of the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Dolores Casey immediate reinstatement to her
former job or, if that job no longer exists, to a substantially
similar position without prejudice to her seniority or other
rights and privileges, and make her whole for the loss she
suffered as a result of the discrimination in the manner set
forth above in the remedy section of this decision.
(b) Remove from its files any reference to the discharge
of Casey, and notify her in writing that this has been done
and that evidence of this unlawful activity will not be used
as a basis of future actions against them.
(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 Casey under the terms of this Order.
(d) Post at its facility in Danbury, Connecticut, copies of
the attached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the amended complaint be
dismissed insofar as it alleges violations not specifically
found here.