Style of Liberty Pavilion Nursing Home

National Labor Relations Board - Board Decisions

Mar 10, 1981

254 N.L.R.B. 1299 (N.L.R.B. 1981)

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N o ' I - I C E EMPI.OYI:IS
POS'rrto O R D I ~ R T H E
LABOR RI:.I.ATIONS
~ 1 1 . 1 . NO'I'
WI1.1.
R.
BUS~NESS
STATEMENT CASE
ARLINE
10, 1979,'
8(a)(l) 2(6) '
tional
I.
cpec~fied,
LIBERTY PAVILION NURSING HOME
Gerald M. Martin and Kathleen R. Martin, a Part-
nership Doing Business Under the Trade Name
and Style of Liberty Pavilion Nursing Home
and Local Professional and Health Care
Division, United Food and Commercial Workers
Union, AFL-CIO. Cases 1-CA-16665 and
CA-16876
March 10. 1981
DECISION A N D ORDER
On September 12, 1980, Administrative Law
Judge Pacht issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Gerald M.
Martin and Kathleen R. Martin, a Partnership
Doing Business Under the Trade Name and Style
of Liberty Pavilion Nursing Home, Danvers, Mas-
sachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
IS FURTHER ORDERED that the complaint, as
amended, be, and it hereby is, dismissed insofar as
it alleges violations not specifically found herein.
The General Counsel has ercepted to certain findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance o f all o f the relevant
evidence convinces us that the resolutions are incorrect.
91 NLRB enfd. 362 (3d
1951). We have carefully examined the record and find no for re-
versing her
Member lenkins does not rely on Line, A Division of
Line. 251 NLRB 1083 (1980). the issue here is not one o f sepa-
rating dual but
asserted reason for
reason, and w e conclude that
one o f determining whether Respondent's
Gamanche and Conrad was true
was.
254 NLRB No. 169
APPENDIX
To
HY OF
NATIONAI. BOARD
An Agency of the United States Government
WE prohibit any employee from
distributing union literature on our premises
during nonworking hours and in nonworking
areas.
WE NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
G ERALD M. MARTIN A ND KATHLEEN
MARTIN, A PARTNERSHIP DOING
UNDER THE TRADE NAME
AND STYLE OF LIBERTY PAVILION
NURSING HOME
DECISION
OF THE
PACHT, Administrative Law Judge: Upon a
charge originally tiled on October and amend-
ed on November 26, by Local 1445, Professional and
Health Care Division, United Food and Commercial
Workers Union, AFL-CIO (hereinafter Union), against
the Liberty Pavilion Nursing Home (hereinafter the Re-
spondent), the General Counsel issued the original com-
plaint on November 27. On January 3, 1980, an order
consolidating cases and an amended complaint issued al-
leging that the Respondent had engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion and (3) and Section and (7) of the Na-
Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act. By timely answer, the Respondent
denied the commission of the alleged unfair labor prac-
tices. A hearing at which all parties were represented
was held before me in Boston, Massachusetts, on June
12, 13, 25, and 26.
Upon the entire record, and my observation of the de-
meanor of the witnesses and consideration of post-hear-
ing briefs, I make the following:
THE BUSINESS OF THE RESPONDENT
The Respondent, a partnership doing business under
the trade name of Liberty Pavilion Nursing Home with
its principal office and place of business in Danvers,
Massachusetts, is engaged in the operation of a propri-
etary nursing home. In the course and conduct of its
business, the Respondent annually derives a gross income
in excess of $100,000. Further, the conduct of the Re-
Unless otherwise all material events herein took place in
1979.
13oU DECISIONS NATlONAL
AFL-
111.
the
c o r r i d ~ r . ~
Rigby,
semiambula-
Tanso. Tanso,
Tanso
Tanso chair,3
Rigby
Rigby
Tanso
Tanso
assit XI
Chur-
ribs.4
Rigby's
morn-
2 lhree
a~de, ~f
lind immaterial.
3
4 IS sufTered
OF LABOR RELATIONS BOARD
spondent's business requires that it purchase and trans-
port in interstate commerce from and through various
States other than the Commonwealth of Massachusetts
large quantities of food, drugs, and other materials
valued in excess of $50,000. Upon the foregoing facts,
the General Counsel alleges, the Respondent concedes,
and I find that the Respondent is engaged in commerce
within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 1445, Professional and Health Care Division,
United Food and Commercial Workers Union,
CIO, is a labor organization within the meaning of the
Act.
THE ALLEGED UNFAIR LABOR PRACTICES
A. The Concerted Activity
Liberty Pavilion is one of several nursing homes oper-
ated by the Respondent for elderly patients who require
varying degrees of attention ranging from custodial to
total care. Nurses aides minister to patients' daily needs
such as their feeding, bathing, toileting, and dressing.
The aides also are responsible for observing and record-
ing any change in patient's condition or any event
which may occur to them.
Toward the end of August, nurses aide Rita Gamache
contacted the Union with regard to organizing Respond-
ent's employees. Throughout much of September she
served as the Union's primary link to the other aides, ar-
ranging for the meetings of September 12, 19, and 26 and
obtaining signatures on authorization cards. The second
alleged discriminatee in this case, Linda Conrad, also
manifested support for the Union, attending several
meetings and signing an authorization card.
During September, Gamache had several encounters
with the Respondent's supervisors. At a September 11
staff meeting conducted by Nursing Home Administrator
Marie Heffernan and Director of Nurses Dorothea
Crofts, Gamache spoke out about staffing shortages.
Later, on September 21, Crofts advised Gamache that it
might not be possible to grant her a day off which she
had previously requested. When Gamache pressed for an
explanation, Crofts responded that she had hoped that
Gamache would understand the problem since she
among others had been outspoken about the shortage of
employees. Gamache, in fact, was permitted to take a
personal day off toward the end of the month. On still
another occasion, when a group of nurses aides were dis-
cussing the possibility of pay raises, Crofts indicated that
Gamache was among those employees who would be
likely prospects for merit increases.
B. The Alleged Negligence to a Patient
Gamache and Conrad often worked as a team with pa-
tients who were virtually helpless. On September 23,
while most of the nurses aides on duty that day were at
lunch, Gamache and Conrad remained on the floor at-
tending to the toileting needs of patients whose bed-
rooms were on one corridor while a third aide may have
worked on the opposite A supervising nurse,
Ann also was on the floor administering medica-
tions.
Every aide was instructed that patients under restraint
were never to be left unattended. Gamache and Conrad
testified that, in keeping with this duty, they assisted a
number of patients to the bathroom one at a time prior
to toileting an 86-year-old senile patient, Marion Hart.
who was frequently disoriented and only
tory. Gamache stated that, after waiting in the bathroom
with Hart for several minutes, they heard distinct calls
for help from another patient, Charles
generally an obstreperous and noisy individual, was un-
steady on his feet this day because of medication he was
taking, and required the support of two aides. Leaving
Hart alone and unrestrained in the lavatory, Gamache
and Conrad dashed to the adjacent men's room where
they found partially on the floor entangled in his
own clothing. They arranged in his geri
wheeled him into the corridor, and were returning to
Hart when they heard a thump followed by Hart calling
out for help. Gamache and Conrad ran to the women's
room, finding Hart lying on her side on the floor with a
small cut over one eye. Gamache summoned Ribgy, who
was unaware that anything untoward had occurred.
After took Hart's vital signs and treated the lacer-
ation, the patient was returned to her bedroom and ap-
peared comfortable when Gamache checked on her later
that day.
As required by the Respondent, filled out an ac-
cident report that afternoon, a copy of which was placed
in the nurse log and another forwarded to the director of
nurses office. Hart's family also was advised of her fall
by telephone that afternoon. However, Gamache did not
mention the accident to the nurses aide who was as-
signed to Hart that day, nor did Gamache enter it into
the patient's daily chart. Conrad, who had among
her assigned patients that day, also failed to note the
bathroom incident in his chart, although she did record
that between 11 a.m. and 1 p.m. "Ate Comp. meal
. . . to B.R. voided [sic]."
Several days later, red bruises appeared on Hart's
body and she complained of discomfort. When her sore-
ness persisted, the supervising floor nurse, Elaine
chill, and Crofts decided that X-rays were warranted.
The X-ray report, returned on Wednesday, September
27, revealed that Hart had fractured four Earlier
that day, accident report of the Hart incident
came to Croft's attention.
C. The Discharges
After learning of Hart's accident, Crofts interviewed
each nurses aide on the floor about her possible involve-
ment. When Crofts questioned Conrad on Friday
Witnesses vary in their recollection as to whether two or aides
remained on the floor and the identity of a third any. However. I
this discrepancy to be
A geri chair differs from a wheelchair in that i t is equipped with re-
straints which contain the occupant and i t cannot be self-propelled.
The record ambiguous as to whether Hart also a fractured
ischium.
PAVILION
Tanso's
Tanso,
Tanso
Ga-
1980.5
were responsible. ~lizabeth
patlent.
McPhail,
Hef-
fernan
1V.
Inc., (1980),
(1977),
1301 LIBERTY NURSING HOME
ing, she acknowledged that she and Gamache had placed
Hart on the toilet and then, hearing being noisy,
had left to assist him. Crofts and Heffernan stated that
they specifically asked the aides three times during an in-
terview whether they had toileted and each time
received no answer. However, at the hearing, the aides
testified that they did not know who placed in the
bathroom.
An employee handbook entitled "Personnel Policies
and Procedures Manual" lists 10 causes for summary dis-
charge. Heffernan acknowledged that only the first item,
abuse of patients, was applicable in a general way to the
circumstances of this case. In addition, the manual pro-
vides that other less serious violations will result in
verbal and written warnings prior to the imposition of
more stringent disciplinary action. Crofts and Heffernan
testified that, although not expressly spelled out in the
manual, the Respondent's policy and custom is to dismiss
employees for acts of negligence toward patients. Crofts,
believed, therefore, that past practice and policy required
the dismissal of Gamache and Conrad. On September 28,
Crofts, in Heffernan's presence and with her approval,
advised the aides of their discharge. Gamache protested,
pointing out that she understood employees were to re-
ceive three warnings prior to termination and accused
them of firing her for her union activity. Neither
mache nor Conrad had received prior written warnings
about their performance and were reputed to be compe-
tent and experienced aides.
In support of the contention that negligence toward
and abuse of patients is not tolerated, the Respondent's
witnesses reviewed the discharges of some seven em-
ployees between 1974 and Two of the termina-
tions were of employees who had slapped patients. Four
other aides were discharged after injuries occurred to pa-
tients for whom they Thus,
Wilder's discharge in October 1974 came about when she
turned from an unrestrained patient who fell from the
bed and cut herself; Ellen Sweeney was dismissed when
a patient fell whom she failed to restrain in his wheel-
chair; Sabrina Viscusi was fired after a blind and disabled
patient whom she had left alone in the lavatory fell and
suffered head injuries; and in January 1980 Teresa Geras
was dismissed when an unstable patient whom she had
left sitting on the side of the bed without restraints fell
and sustained head lacerations. A fifth employee was ter-
minated in August 1979 when within the span of 1 day
four instances of neglecting patients' safety and poor per-
formance occurred. Several of these employees had re-
ceived written warnings but for conduct which was un-
related to the causes of their discharges.
However, employees were not invariably disciplined
when injuries occurred to patients in their charge. For
example, neither Sharon Andrade nor Charlene Silvester,
who were known to management as union supporters,
was disciplined when a heavy patient they were lifting
caught and lacerated his toe on the bedstead; nor was
Rene Amos, another union advocate, held responsible
when a patient with muscular dystrophy suffered a
A number of other employees also were terminated during these
years but for reasons unrelated to neglect of a
spasm and slipped out of a hoisting apparatus Amos was
operating. Two other known union proponents, Marsha
Colcough and Fay Wilson, were not held accountable
when a patient in their charge was found on fire. One
employee accused of slapping a patient received only a
written warning when the nursing supervisor could not
obtain firsthand verification of the misconduct. Another
employee who left a patient unattended in the bathroom
went unpunished, but that accident was not brought to
Croft's or Heffernan's attention.
D. Handbilling and the Election
On October 4, 1979, the Union filed a petition asking
to represent all of the Respondent's service and mainte-
nance employees.
Some days later, on October 8, the Union Representa-
tive Ron Kean, Gamache, Conrad, and another nurses
aide, Kelly were distributing handbills an-
nouncing the forthcoming election and a union meeting
to employees in the parking lot of the nursing home.
Kean sought out Administrator Heffernan to demand
union recognition. When their conversation ended,
called to the group informing them that they
were on private property and that, if they did not leave,
she would call the police. Several minutes later, the
police arrived and, in response to their order, the group
did depart.
Respondent's personnel policies and procedures
manual provides that the parking lot is available for visi-
tors and employees. However, it was also used by per-
sons picking up and discharging employees and patients.
A representation election was held on December 6 and
on December 17 the Union became the certified bargain-
ing agent for the Respondent's employees.
DISCUSSION AND CONCLUSIONS
The Respondent contends that, although its supervi-
sors were aware of Gamache's and Conrad's union activ-
ity, they were discharged solely because of their negli-
gence toward patient Marion Hart. The General Counsel
argues that, in light of their conflicting duty to assist an-
other patient, Gamache's and Conrad's conduct toward
Hart was not so reproachable as to warrant summary
dismissal. Further, counsel argues that the Respondent's
policy and practice of terminating negligent employees
was not uniformly applied, thereby revealing that its os-
tensible reason for the discharges was a ruse to conceal
its interest in being rid of key union activists. Thus, this
case presents the familiar dilemma of discerning the Re-
spondent's motivation for dismissing employees where
there is, on the one hand, just cause for the termination
and, on the other, admitted union animus. In dual-motive
cases such as this, the Board announced in a very recent
significant decision, Wright Line, A Division of Wright
Line, 251 NLRB 1083 that a two-step proc-
ess must be employed to assess the employer's asserted
grounds. Following the test of causality utilized by the
Supreme Court in Mt. Healthy City School District Board
of Education v. Doyle, 429 U.S. 274 the Board has
imposed upon the General Counsel the initial burden of
making a prima facie showing that the protected conduct