Northwest Community Nursing Service

National Labor Relations Board - Board Decisions

Mar 6, 1992

306 N.L.R.B. 602 (N.L.R.B. 1992)

602
306 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge erroneously captioned this proceeding as Case 1–CA–
28722.
2 The General Counsel’s motion to strike the Respondent’s ref-
erences in its exceptions and brief, and accompanying affidavit, to
a subpoena directed to the Respondent’s executive director, Beverly
McGuire, is granted as this matter was not submitted as record evi-
dence at the hearing in this proceeding. Redok Enterprises, 277
NLRB 1010 fn. 1 (1985).
3 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.
4 We agree with the judge, for the reasons stated in his opinion,
that the General Counsel made a prima facie case that employee An-
drea Jean Petteruto’s filing a grievance was a motivating factor in
the Respondent’s discharge of her. In adopting the judge’s conclu-
sion that the Respondent would not have discharged Petteruto even
in the absence of her filing of a grievance with the Union, we find
that the evidence fails to support the Respondent’s stated reasons for
discharging Petteruto based on job performance. We note in this re-
gard that the Respondent’s medical director, Kenneth John Piva, ad-
mitted at the hearing that Petteruto’s job performance improved over
the course of her employment; further, the Respondent presented no
specific credible evidence demonstrating either that Petteruto had
been warned that her overall job performance was so deficient as to
warrant discipline or that any patient had complained to the Re-
spondent about Petteruto’s performance. We therefore agree with the
judge that the Respondent failed to meet its evidentiary burden under
Wright Line, 251 NLRB 1083 (1980). We also find no merit to the
Respondent’s contention that Petteruto’s filing of a grievance with
the Union was not protected under the Act. See generally NLRB v.
City Disposal Systems, 465 U.S. 822 (1984).
Although we find that the Respondent, through Piva, violated the
Act by telling Petteruto on March 30 that she was fired for filing
a grievance, we note that Piva did not use the words ‘‘poor judg-
ment’’ in speaking to Petteruto on that day. Those words were used
by Piva in speaking to Petteruto on March 15. The General Coun-
sel’s complaint does not plead a violation on March 15. Accord-
ingly, we shall amend the proposed Order and notice by deleting the
reference to ‘‘poor judgment.’’
Northwest Community Nursing and Health Service,
Inc. and Local 5022, Federation of Visiting
Nurses and Health Professionals, a/w American
Federation of Teachers, AFL–CIO. Case 1–CA–
272221
March 6, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 29, 1991, Administrative Law Judge Lowell
Goerlich issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.2
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,3 and con-
clusions4 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, North-
west Community Nursing and Health Service, Inc.,
Pascoag, Rhode Island, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Informing an employee that her discharge had
been caused because she filed a grievance under the
labor agreement.’’
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 discourage concerted union activities
by unlawfully discharging employees for filing griev-
ances against us under our labor agreement with the
Union.
WE WILL NOT inform employees that their dis-
charges have been caused because they have filed a
grievance under our labor agreement.
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 Andrea Jean Petteruto (Ruggieri) im-
mediate and full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to the seniority and other
rights and privileges previously enjoyed, discharging if
necessary any employee hired to replace her, and WE
WILL pay her the backpay she lost because we
discriminatorily discharged her, with interest.
603NORTHWEST COMMUNITY NURSING SERVICE
1 Petteruto was married sometime after her discharge. She will be
referred to by her married name, Petteruto.
2 Federation actually refers to union activity. A grievance under
this section was filed relating to the discharge of Petteruto. The arbi-
trator is holding the grievance in abeyance subject to the outcome
of this proceeding.
WE WILL expunge from our files any reference to
the discharge of Andrea Jean Petteruto (Ruggieri) and
WE WILL notify her, in writing, that this has been done
and that the evidence of these unlawful actions will not
be used as a basis for future discipline against her.
NORTHWEST COMMUNITY NURSING AND
HEALTH SERVICE, INC.
Kevin J. Murray, Esq., for the General Counsel.
Richard DeOrsey, Esq., of Cranston, Rhode Island, for the
Respondent.
John V. Callaci, Esq., of Providence, Rhode Island, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
charge filed by Local 502, Federation of Visiting Nurses and
Health Professionals, a/w American Federation of Teachers,
AFL–CIO (the Union) on April 9, 1990, was served on
Northwest Community Nursing and Health Service, Inc. (the
Respondent), by certified mail on April 10, 1990. A com-
plaint and notice of hearing was issued May 18, 1990. In the
complaint, among other things, it was alleged that the Re-
spondent discharged Andrea Jean (Rugguiri) Petteruto,1 in
violation of Section 8(a)(3) of the National Labor Relations
Act (the Act).
The Respondent filed a timely answer denying that it had
committed the unfair labor practices alleged.
The matter came on for hearing in Boston, Massachusetts,
on May 1, 1991. Each Party was afforded a full opportunity
to be heard, to call, to examine and cross-examine witnesses,
to argue orally on the record, to submit proposed findings of
fact and conclusions, and to file briefs. All briefs have been
carefully considered.
On the entire record in this case and from my observation
of the witness and their demeanor, I make the following
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF THE RESPONDENT
At all times material, Respondent, a corporation, with a
principal office and place of business in Harmony, Rhode Is-
land (Respondent’s Harmony facility), and a clinic located in
Pascoag, Rhode Island (Respondent’s Pascoag facility), has
been engaged in providing community nursing and health
care services.
During the calendar year ending December 3, 1989, Re-
spondent, in the course and conduct of its operations de-
scribed above, derived gross revenues in excess of $100,000.
During the calendar year ending December 31, 1989, Re-
spondent, in the course and conduct of its operations de-
scribed above, purchased and received at its Harmony facility
products, goods, and materials valued in excess of $5000 di-
rectly from points outside the State of Rhode Island.
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICE
Andrea Jean Petteruto (Ruggieri) was employed as a pro-
bationary employee by the Respondent at is Pascoag facility
on February 20, 1990, and discharged on March 30, 1990.
In August 1989, she had received her degree of licensed
practical nurse (LPN) and was licensed in November 1989.
Her job with the Respondent as a LPN was her first full-time
job as a LPN. The Respondent, when it hired her, was aware
of her lack of experience. She received no formal training
from the Respondent but learned her duties from instruction
on the job. She was the only LPN working at the Pascoag
facility.
Under the labor agreement between the Respondent and
the Union, Petteruto would have remained a probationary
employee for 6 months’ duration. As a probationary em-
ployee she was subject to the following contractual provi-
sion:
There shall be no recourse for termination of the em-
ployment of an employee during the probationary pe-
riod.
During the probationary period, discipline, layoff,
transfer or discharge will be at the sole discretion of the
Employer without recourse.
However the contract also contained the following provi-
sion:
Article XVII, section 17.01:
The employer agrees not to discriminate in hiring,
promoting, advancing, or assigning positions in any
other term or condition of employment against an em-
ployee because of race, color, national origin, religious
affiliation, sex, age, physical handicap or Federation ac-
tivity.2
Probationary employees were not barred from filing griev-
ances under the contract.
On March 13, 1990, Petteruto filed a grievance under arti-
cle 8.01(a) and (b) of the contract. She alleged the employees
were denied a ‘‘30 minute uninterrupted lunch period’’ as
was required by the contest. Prior to filing the grievance
Petteruto had contacted Dr. Kenneth John Piva, medical di-
rector of the clinic at Pascoag around March 8, 1990. Among
other things she asked him about lunches and said it was
‘‘unfair’’ that she didn’t get a lunch break. Piva replied,
‘‘when its your turn to cover the desk, you have to be here.’’
She reminded Piva that under the contract he was to have
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Piva denied this meeting. Petteruto is credited.
4 Piva memorialized this conversation in a memo dated March 20
(G.C. Exh. 4).
In pertinent part, the memo read:
Discussed filing and response of the grievance regarding lunch
breaks . . . told Andrea such action showed poor judgement by
taking such extreme action without going through the normal
and expected routes for solving work-related problems.
5 A staff meeting had been held on March 26, 1990. Petteruto was
absent because of illness.
6 John Vincent Callaci, federation representative, contacted
McGuire about Petteruto’s discharge around April 4, 1990, McGuire
denied ‘‘the reason for the discharge.’’ She also said that ‘‘she was
angry that she grievance was filed, regarding the lunch time griev-
ance’’ McGuire was not called as a witness. Callaci had related to
McGuire that Dr. Piva had told Andrea that ‘‘she was fired for filing
a grievance and that he had mentioned her name saying that
McGuire wanted her fired on the spot.’’ Callaci also conferred with
Anna Rosa Sullivan who is president of the board of directors and
acts as agent of the Employer with the authorization of the board
about Petteruto’s discharge on April 17, 1990. Callaci related to Sul-
livan that Petteruto was fired for filing a grievance and what Piva
had said were the reasons for firing her. Sullivan replied that
McGuire had fired Petteruto not Piva. Sullivan further said, that
‘‘Beverly McGuire was in fact angry when Ruggieri filed the griev-
ance over the lunch time.’’ Sullivan did not specifically deny any
of the foregoing testimony of Callaci.
7 Piva testified that he had had no intention of firing Petteruto
prior to March 30, 1990.
8 ‘‘An employer may discharge an employee for good cause, bad
cause at all, without violating Sec. 8(a)(3), as long as his motivation
is not antiunion discrimination and the discharge does not punish ac-
tivities protected by the Act.’’ L’Eggs Products v. NLRB, 619 F.2d
1337, 1341 (9th Cir. 1980).
9 ‘‘The submission grievance based on the collective bargaining
agreement cannot be the basis of a discharge.’’ Selwyn Shoe Mfg.
Corp., 228 F.2d 217, 221 (8th Cir. 1970). See State Mechanical
Constructors, 191 NLRB 393, 396 (1971).
10 ‘‘[T]he ‘real motive’ of the employer in an alleged Section
8(a)(3) violation is decisive.’’ NLRB v. Brown Food Store, 380 U.S.
278, 287 (1965). ‘‘It is the ‘true purpose’ or ‘real motive’ in hiring
or firing that constitutes the test.’’ Teamsters Local 357 v. NLRB,
365 U.S. 667, 675 (1961). ‘‘Section 8(a)(3) prohibits discrimination
in regard to tenure or other conditions of employment to discourage
union membership. . . . It has long been established that a finding
of violation under this section will normally turn on the employer’s
motivation.’’ American Ship Building Co. v. NLRB, 380 U.S. 300,
311 (1965).
‘‘a half an hour’’ Piva said, ‘‘I really can’t do anything
about that.’’3
A day or two after the lunchtime grievance was filed, Piva
called Petteruto into his office; a copy of the grievance was
on Piva’s desk. He told Petteruto that he was ‘‘upset’’ and
that she should have come to him first. Petteruto reminded
Piva that she had talked to him about the lunch situation. He
replied that he ‘‘would have to come up with a plan so that
we would have lunches.’’4
The grievance was resolved in Petteruto’s favor by rotat-
ing the schedule so that the effected employees would have
have an uninterrupted lunch period.
Piva further said that ‘‘an the meeting5 on Monday some
negative things were said’’ about Petteruto.
On March 30, 1990, Piva called Petteruto into his office
and told her ‘‘you’re fired or we have to let you go . . . you
did it to yourself by going to the Union and when Bev [Bev-
erly McGuire, executive director] received the grievance she
wanted to fire you on the spot.’’6
The foregoing evidence which constitutes the General
Counsel’s prima facie case, if credited, clearly establishes
that Petteruto was discharged for filing a grievance.
Piva, who was the principal witness of the Respondent, de-
nied that Petteruto had been fired for union activities. He tes-
tified that he disapproved of her ‘‘overall’’ performance.
However, he testified that ‘‘over the course of her employ-
ment’’ she had shown improvement in work performance but
not enough to keep her. ‘‘She was good talking to patients,
she had a very good personality. She was very pleasant to
the patients, they seemed to like her.’’ She had ‘‘fair’’ orga-
nization skills. While she was told she could be fired for
‘‘any reason,’’ Piva did not tell her that ‘‘if her performance
did not improve she’d be terminated.’’
Specifically, Piva testified that Petteruto ‘‘showed poor
judgment in filing the grievance’’ and he felt that the griev-
ance was ‘‘unnecessary’’ ‘‘I was annoyed with Andrea for
not talking about it first’’ ‘‘she reflected poor judgment and
extreme action.’’
Petteruto’s grievance was the only one which had been
lodged against Piva during his 3-1/2 years of employment.
Although Piva testified that he had fired Petteruto, he said
that it was a ‘‘mutual decision’’ between McGuire and him.
According to Piva on the day7 on which he decided to fire
Petteruto he discussed the matter with McGuire, ‘‘more or
less about her job performance and the dissatisfaction that we
were having.’’ McGuire suggested that the reasons for
Petteruto’s discharge be ‘‘memoraliz[ed].’’
Piva’s written reasons were:
Poor decision making judgement .
Lack of focus in setting priorities.
Staff complaints with job performance.
Slowness in developing necessary clinic skills.
McGuire’s written reason were:
Discussion with Dr. Piva re Andrea’s dismissal.
Since our recent discussion about termination of em-
ployment, Agency reason for dismissal were discussed.
—using poor judgement
—slow learning curve
—job performance lacking
—lack of experience
—lack of expertise for what health center needs.
Conclusions and Reasons Therefor
Under the collective-bargaining contract between the Re-
spondent and the Federation, the Respondent apparently
could discharge a probationary employee for good cause, bad
cause, or no cause at all,8 however, Respondent could not
discharge a probationary employee for exercising the right to
file a grievance under the collective-bargaining agreement.9
Thus, if the ‘‘real motive’’10 of the Respondent discharging
Petteruto was that she filed a grievance under the labor
agreement, the Respondent has violated Section 8(a)(3) of
the Act.
Among the reasons cited the Respondent for her discharge
was that Petteruto ‘‘showed poor judgment in filing this
605NORTHWEST COMMUNITY NURSING SERVICE
11 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.
grievance.’’ Petteruto was also told Piva that ‘‘such action
showed poor judgment by taking such extreme action. (G.C.
Exh. 4.) The language chosen, when taken with the fact that
both Piva and McGuire acted using poor judgment as the
prime reason for the discharge brooks no other reasonable in-
terpretation than that filing a grievance was considered a dis-
chargeable offense. Thus it is clear that at least one of the
reason cited by the Respondent for Petteruto’s discharge was
that she had filed a grievance under the contract. Such reason
sustains an unlawful motive. Assuming arguendo that the
other motives were lawful, it seems clear that the lawful mo-
tive for discharging Petteruto cannot be separated from its
unlawful motive. The Supreme Court had opined in the case
of NLRB v. Transportation Management Corp., 462 U.S.
393, 403 (1983).
The employer is a wrongdoer; he has acted out of a
motive that is declared illegitimate by the statute. It is
fair that he bear the risk that the influence of legal and
illegal motives cannot be separated, because he know-
ingly created the risk and because the risk was created
not by innocent activity but by his own wrongdoing.
Accordingly, I find that the Respondent has failed to rebut
the General Counsel’s prima facie case and violated 8(a)(1)
and (3) of the Act when it discharged Petteruto. See Wright
Line, 251 NLRB 1083 (1980). See also Sea Land Service,
280 NLRB 720 (1986); Herman Bros., 252 NLRB 848
(1980).
Additionally, I credit Petteruto’s testimony in which she
attributed these remarks to Piva when he discharged her,
‘‘you did it to yourself by going to the union and that when
Bev McGuire received the grievance she wanted to fire you
on the spot.’’ Piva’s testimony was not enhanced by the fail-
ure of the Respondent to call McGuire as a witness. More-
over, Petteruto had never been warned that he her alleged
shortcomings would result in her probable discharge. I con-
clude and find that had Petteruto not filed the lunchtime
grievance she would not have been discharged. The real rea-
son and the motivating factor for her discharge was the filing
of the grievance.
Accordingly, by the discharge of Petteruto on March 30,
1990, the Respondent violated Section 8(a)(1) and (3) of the
Act. By Piva’s statement to Petteruto that she had been dis-
charged because she used poor judgment in filing a grievance
under the labor agreement violated Section 8(a)(1) of the
Act.
By Piva’s statement to Petteruto that she had been dis-
charged because she used poor judgment in filing a grievance
under the labor agreement, the Respondent violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and it will effectuate the purposes of the Act for jurisdiction
to be exercised.
2. By interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them by Section 7
of the Act, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
3. By unlawfully discharging Andrea Jean Petteruto on
March 30, 1990, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It also having
been found that the Respondent unlawfully discharged An-
drea Jean Petteruto on March 30, 1990, and has since failed
and refused to reinstate her in violation of Section 8(a)(3) of
the Act, is is recommended that the Respondent remedy such
unlawful conduct. In accordance with the Board policy, it is
recommended that the Respondent offer the foregoing em-
ployee immediate and full reinstatement to her former posi-
tion or, if such position no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges previously enjoyed, dismissing if
necessary any employee hired on or since the date of her dis-
charge to fill said position, and make her whole for any loss
of earnings she may have suffered by reason of the Respond-
ent’s acts herein detailed, by payment to her of a sum of
money equal to the amount she would have earned from the
date of her unlawful discharge to the date of an offer of rein-
statement, less net interim earnings during such period with
interest thereon, to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended 11
ORDER
The Respondent, Northwest Community Nursing and
Health Service, Inc., Pascoag, Rhode Island, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging concerted union activities by unlawfully
discharging employees for filing grievances against it under
the labor agreement with the Union.
(b) Informing an employee that her discharge had been
caused because she used poor judgment in filing a grievance
under the labor agreement.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Carol Andrea Petteruto (Ruggieri) immediate and
full reinstatement to her former position or, if such position
no longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privileges
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 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.’’
previously enjoyed, discharging if necessary any employee
hired to replace her, and make her whole for any loss of
earnings she may have suffered by reason of the discrimina-
tion against her in accordance with the recommendations set
forth in the remedy section of this decision.
(b) Expunge from its files any reference to the discharge
of Andrea Petteruto (Ruggieri) and notify her that this has
been done and that evidence of this unlawful action will not
be used as a basis for future discipline against her.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Pascoag, Rhode Island facility copies of the
attached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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 RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act other than
those found in this decision.