TLC Health Network d/b/a Lake Shore Health Care Center

National Labor Relations Board - Administrative Judge Opinions

Oct 23, 2014

03-CA-113937 (N.L.R.B. Oct. 23, 2014)

JD(NY)–43–14
Irving, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
TLC HEALTH NETWORK D/B/A LAKE
SHORE HEALTH CENTER, DEBTOR-IN-POSSESSION
and Case No. 03-CA-113937
1199 SEIU UNITED HEALTHCHARE
WORKERS EAST
Alicia E. Pender and Claire Sellers, Esqs.,
for the General Counsel.
Joseph L. Braccio and Jaclyn L. West Hamlin, Esqs.
(Hodgson Russ, LLP), Buffalo, NY, for the Respondent.
Anna Falicov, Esq. (Creighton, Johnsen & Giroux, Esqs.),
Buffalo, NY, for the Union.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge:
This case presents the conflict between two important and unquestionable rights: the
right of a worker, even though she is a statutory supervisor,1 to vote in a Board-conducted
election, and the right of an employer to demand that its supervisor follow its orders. Because I
find that the right to vote must prevail, I conclude that supervisor Anna Galofaro was unlawfully
discharged for voting in a Board election.
Based on a charge filed on September 24, 2013 by 1199 SEIU United Healthcare
Workers East (Union), a complaint was issued against TLC Health Network d/b/a Lake Shore
Health Center (Respondent) on April 7, 2014.2
The complaint alleges that in violation of Section 8(a)(1) and (4) of the Act, the
Respondent discharged Anna Galofaro, a supervisor, because she voted in a Board-supervised
election in which her supervisory status was at issue.
The Respondent’s answer denied the material allegations of the complaint, and on July
22, 2014, a hearing was held before me in Buffalo, New York. On the entire record, including my
observation of the demeanor of the witnesses, and after considering the briefs filed by the
General Counsel and the Respondent, I make the following:
Findings of Fact

1 Hereafter, the use of the term “supervisor” shall mean a statutory supervisor as set forth in Section
2(11) of the Act.
2 At the hearing, the complaint was amended to change the name of the Respondent to TLC Health
Care Network d/b/a Lake Shore Health Care Center, Debtor-in-Possession.
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I. Jurisdiction and Labor Organization Status
The Respondent, a not-for-profit corporation, having an office and place of business in
Irving, New York, has been engaged in the operation of an acute-care hospital. Annually, the
Respondent in conducting its business operations, derives gross revenues in excess of
$250,000 and purchases and receives at its Irving, New York facility, goods valued in excess of
$5,000 directly from points outside New York State. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
The Respondent also admits and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. Summary of the Facts
The essentially undisputed facts may be summarized as follows: Galofaro, a supervisor,
believed that she was eligible to vote based on advice from Union agents that they believed that
she was not a supervisor. Galofaro was told by her manager that, as a supervisor, she was not
eligible to vote and could not vote. She was also told not to enter the voting room because doing
so may prompt an election objection or an unfair labor practice charge.
Galofaro protested that she believed that she was eligible to vote. She rejected her
manager’s statement of her ineligibility based on the Union’s advice that she was eligible and
because she believed that her manager did not know what he was talking about. She further
ignored her manager’s advice that if she had any questions about her eligibility she should
speak with the director of employee relations. She declined to do so because she believed that
the Union agents had sufficiently answered her questions about her eligibility.
Galofaro voted, dismissing her manager’s direction not to vote, and disregarding the
signs in the voting room which stated that managers could not be in that area. She cast a
challenged ballot because her name was not on the eligibility list. Immediately following the
election, following the production of documentary proof that she possessed and exercised
supervisory authority, the parties agreed that her ballot should not be counted.
Galofaro was discharged for insubordination – failing to obey her manager’s orders not
to vote and not to enter the voting room.
B. Galofaro’s Understanding of her Eligibility to Vote
Anna Galofaro was employed for 10 years. For the last four years she held the position
of “dietary supervisor.” The complaint alleges and the parties agree that as a dietary supervisor
she has been a statutory supervisor.
In about February, 2013, the Union began a campaign to organize a unit of service and
maintenance employees, including dietary aides, of the Respondent. In the following month,
Sandy Harmon, a Union organizer, phoned all the employees who worked in the dietary
department, including Galofaro.
Harmon met with Galofaro in March. They spoke about working conditions and how
representation by the Union would benefit the employees. Harmon stated that she asked
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questions concerning Galofaro’s duties in order to “rule out” that she possessed supervisory
responsibilities.
Although Harmon stated that Galofaro did not raise the issue of her supervisory status,
and she did not ask her title, Harmon asked about her managerial duties – hiring, firing, and
setting schedules. Harmon spoke with other dietary workers who did not refer to Galofaro as a
supervisor, and she did not become concerned about Galofaro’s status as a supervisor.
Harmon explained the election process to Galofaro, including that the parties have a
right to challenge a voter, who then votes, and it is later decided whether her vote will be
counted.
Galofaro’s version of her meeting with Harmon was essentially similar. Harmon asked
her to describe her duties. She did so, and mentioned her title. Harmon explained the election
process in greater detail. Harmon said that she was not certain whether Galofaro would be
affected by the election because of her title as supervisor but that she would check into it.
Harmon checked and then asked Galofaro, without giving a “complete legal description”
of a supervisor’s authority, whether she could hire or fire employees. Galofaro said she did not
have that authority. Harmon replied that her responsibilities were more like a “lead position” than
a supervisor – that her responsibilities did not “fulfill … all the qualifications of a supervisor” -
and that her status in the Union would not be affected. Galofaro testified that, after that
conversation, she believed that she was eligible to vote.
C. Instructions by Management
Galofaro stated that in June, Steve King, her direct supervisor and the director of
nutrition services, and Dawn Weiskerger, his assistant, met with Galofaro and full-time
supervisor Lela Parsell and head chef Gina Berringer. Two part-time supervisors were not
present.
Amber Gould, a relief cook supervisor testified that she was present at the meeting with
Galofaro and Parsell. It must be noted that, as set forth above, Galofaro stated that the part-time
supervisors were not present and she did not identify Gould as being at the meeting. Gould
stated that she worked five days a week, but only three as a supervisor. She denied that
Berringer was at the meeting.
King did not testify. Galofaro testified that King told them that the Union was asking
employees to vote for it in the upcoming election. He told them some facts about the Union
including that it was not the same labor organization which represents employees at Brooks
Hospital. He explained why the Respondent “didn’t want the Union there.” King said that “as
supervisors, we were responsible for helping our department … come to the right conclusion
about the union and about the voting process…. He asked whether or not he could count on us
to support TLC’s position on the union.” The three other supervisors answered or nodded
affirmatively. Galofaro replied that she “wasn’t sure I could do that.”
Galofaro stated that at the meeting, King told those assembled that they were part of the
supervisory team and that management expected them to support the Employer’s position – to
“uphold” the Respondent’s “view on the election.” She told him that she did not have enough
information on the matter to say “100% yes or no on anything.” She denied that King told her
that the supervisors could not vote in the election. Rather, he said that they were “ineligible to
vote” because the election did not affect them.
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When King told the three women that they were not eligible to vote in the election.
Galofaro asked “are you sure about that, because I was told that we were.” King replied “no, it
doesn’t affect you guys, so you’re not eligible to vote in it. It doesn’t concern you, so you’re not
eligible to vote.” The supervisors also agreed that in support of the Employer’s position they
should inform the workers when meetings were held so that they could attend, obtain
information and become informed voters. King said that that type of support for the Employer
was sufficient.
Gould, called to testify by the Respondent, stated that at the meeting, King told the
supervisors that they were not allowed to vote in the election, they should stay out of the polling
place, and that if they voted, they could be terminated. She quoted Galofaro as asking why she
could not vote, and King answering that the election “had nothing to do with the supervisors”
and they were “not part of the election so it didn’t pertain to us.” He said that if they had any
questions they could ask him or Tracie Luther, the director of employee and labor relations.
Gould did not vote in the election.
King asked to meet with Galofaro privately. At their private meeting, King told Galofaro
that if she did not believe that she could support the Employer’s position she would be “asked to
step down as dietary supervisor.” Galofaro became upset and asked him to clarify what he
meant by “supporting TLC’s position on the union,” asking him whether she had to tell an
employee how to vote, because she did not want to give her opinion and tell a worker how to
vote. King answered she did not have to do that; he simply wanted her to tell employees, if they
asked, that TLC’s position is that it did not want a union. Galofaro agreed to do that.
King advised Galofaro that if she had any questions she could ask Luther. Galofaro did
not speak with Luther because her questions were answered to her satisfaction by Harmon.
D. Galofaro’s Later Conversation with Harmon
Galofaro spoke with Harmon again. She told Harmon that King was wrong in telling the
workers that the Union did not represent the employees at Brooks Hospital since Galofaro’s
mother, who works there, confirmed that the Union represents certain employees at that
hospital.
In their conversation, Harmon confirmed that Galofaro was eligible to vote. Galofaro
testified that she asked Harmon to double and triple check that advice since King told her that
she was not eligible.
Harmon agreed to again check whether Galofaro was eligible to vote, adding that it was
“more likely” that her vote would be challenged. She explained the challenge ballot procedure –
that her challenged ballot would be counted after the other ballots were counted.
Harmon testified that she believed that management personnel could not vote in Board
elections but that supervisors are permitted to vote.
Harmon called Galofaro within one week, advising her that she was eligible to vote, but
she would vote subject to challenge. Galofaro believed that that advice was “sufficient,” and
asked Harmon if she needed to check anything else, and Harmon said she did not, unless she
had any other questions. Galofaro further testified that she was told by two other Union agents
that her duties were more like a lead person than a supervisor, and that she would be able to
vote subject to challenge. She asked a union agent whether she should speak to the human
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resources department about the matter but she said that it was not necessary.
E. The Election and Galofaro’s Discharge
On August 29, an election was held in a unit of service and maintenance and clerical
employees, including dietary aides, and excluding supervisors as defined in the Act. The voting
was conducted in three shifts: 6:00 a.m. – 8:00 am; 11:30 a.m. – 3:00 p.m., and 5:00 p.m. –
8:00 p.m.3
Galofaro arrived at work at 11:30 a.m. for her 12:00 noon shift. She entered the voting
area at 11:30 a.m. wearing her hospital badge identifying her as a supervisor, and approached
the voting table. She saw signs posted in the voting room stating “no management in the area.”
She believed that “management” referred to managers such as King, and therefore did not
apply to her.
She was told that her name was not on the eligibility list and she cast a challenged
ballot. She then reported to King’s office where King’s assistant, Weiskerger showed her an
email message and asked her to sign it.
The message, sent at 6:10 a.m. that morning by Luther and bearing the subject “Union
Vote – Poling Area – Important” was addressed to the managers. It read as follows:
Managers – please be advised that due to today’s Union Vote,
Managers and Supervisors must remain out of the Credit
Union/SNF Activities Room Corridor during polling hours.
Consequences of non-compliance may lead to an Unfair Labor
Practice Charge by the union, which can gravely alter the election.
You may utilize the counselor hallway of IRRS to get to and from
the main hospital, not the living area, or you can utilize the outside
entrances.
You can visit the credit union when polls are not in session from
8:35 am – 11:15 am and 3:05 pm – 4:00 pm. Managers, please be
sure to notify your supervisors. Also, please make sure that staff
within your department that are considered part of the bargaining
unit have an opportunity to vote and remind them of hours of
polling in the SNF Activities Room ….
Galofaro told Weiskerger that she could not sign the message because she had already
voted. Weiskerger asked “didn’t you know that you weren’t supposed to be voting?” Galofaro
replied that she was just given that notice, and asked why she was not given the notice earlier in
the week. Weiskerger said she just received the email. Galofaro went to her work area.
At the end of the election, the Employer and Union took up the issue of whether the
challenged ballots, including Galofaro’s ballot, should be opened and counted. The Employer
asserted that she was a supervisor. The Union objected and asked for evidence of her
supervisory status. The Employer produced disciplinary forms signed by Galofaro and it was
agreed by both parties that her ballot should not be counted.

3 Counsel for the General Counsel represented that an election in a unit of skilled maintenance
employees was held on September 6. Luther did not recall the date of that election.
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The Tally of Ballots showed that of the106 eligible voters, 52 votes were cast for the
Union, and 33 against it. There were 3 challenged ballots. There was no evidence that
objections to the election were filed by any party, or that a charge was filed relating to the
election.
The following day, Galofaro reported to work and was asked to meet with King and
Luther. Galofaro testified that Luther asked her whether she voted the day before and Galofaro
admitted doing so. Luther asked her why she “ignored the signs that were in the area.” Galofaro
replied that she did not ignore them; she did not “realize that they applied to me” as they
referred to “management.” Luther asked “did you know that you weren’t supposed to be voting
in the union election?” Galofaro said that she did not know, and that she had been told that she
was “eligible, that I was voting under the challenged vote.” Luther asked her who gave her that
advice. Galofaro said that union representatives explained the challenged voting procedure,
and “that’s the way I was told to vote.” Luther said that “that was wrong,” that she should not
have voted and that she was not allowed to vote. Galofaro protested that she was not aware of
that.
Luther pressed on, asking whether she met with King before the election, and didn’t he
tell her that she could not vote? Galofaro denied that King said that she could not vote; he
simply said that she was not eligible to vote. She also noted that King seemed to be “confused
on some of his details” since he said that the Union did not represent the Brooks Hospital
employees. She concluded from this misstatement, and his remark that she was ineligible when
the Union agents said she was, and his “fumbling over his words” that she could not trust what
he was saying, that he “really [didn’t] know what he was talking about,” and that is why she
“confirmed with the union reps.”
Galofaro further testified that Luther told her that she should not have confirmed her
status with the union agents – that she should have asked her. Galofaro admitted to Luther that
King told her to bring any questions to Luther but she had already asked the Union agent to
check on her eligibility and she did, and told Galofaro that she was eligible to vote. Accordingly,
Galofaro believed that her questions were “sufficiently answered” by the Union agents, so it was
unnecessary to consult with Luther.
Luther asked her to write an explanation as to why she voted, and the details of her
conversation with the Union agents. Upon receiving the memo, Luther told her that she was
suspended without pay until further notice.
Galofaro protested that she was told by the Union that she was eligible to vote because
she was a lead person with no authority to hire or fire, and therefore would vote under
challenge. She also asked why she was not told to leave the voting area if she was not
permitted to be there. Luther said that the Employer could not tell her not to vote if she was
already in the voting area. Galofaro continued to argue, saying that she did not receive anything
in writing which stated that she could not vote, and was not told that she would be disciplined if
she voted. She asked why she was not given the email message to sign before the day of the
vote, adding that if she read it before she voted it would have raised a question in her mind and
she would have spoken to someone.
About one week later, at the Respondent’s request, Galofaro met with King and Luther.
Luther told her that she was not eligible to vote, she was not allowed to vote, and because she
was told by King before the election that she could not vote, she had therefore “directly
disobeyed King’s directives to not vote and was insubordinate.” Luther told her that she was
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fired. Galofaro protested that she did not intend to disobey or ignore King’s instructions. Rather,
she was not told that she would be fired for voting. Nor was she told that she could not vote.
Galofaro stated that she encouraged two other supervisors to vote in the election despite
being told by King what the Employer’s position was concerning their voting. The other
supervisors did not vote.
The discharge letter dated September 6 signed by King, stated in relevant part as
follows:
At a meeting on August 7, with Nutritional Services supervisors, I
explained that as supervisors they were ineligible to vote in an
upcoming union election. You were in attendance at that meeting.
At that time, I shared with you my expectations of you as a
supervisor, including that in your role you must be supportive of
the organization’s position during the pending union campaign.
Subsequently, you had some questions of me. I personally met
with you after the meeting to further explain my own and the
organization’s expectations of you as supervisor. When you raised
the question of your own eligibility to vote, I informed you again
that you were ineligible and also informed you that if you had
further questions as to your eligibility to vote, that you should
contact Tracie Luther, Vice President of Human Resources. At
that time, you indicated that you understood what was expected.
On the days prior to the election I again reminded you and the
supervisors of my own and the organizations’ expectations of you
as a supervisor, and your ineligibility to vote.
On August 29, the day of the election, notice was posted in the
election area that no managers were allowed in the polling area
during the election process. Despite these signs, the clear
explanation of your status as a supervisor, clear expectation given
by me of your behavior during the election and your ineligibility to
participate in the election you chose to appear at the polling area
to vote as a service, maintenance and clerical unit employee. You
wore your badge into the polling area which clearly identified you
as a supervisor. Your ballot was challenged, and you were
subsequently ruled ineligible to vote.
Ms. Luther and I met with you on August 30, to investigate this
matter. You indicated that you chose to vote based on your
conversation with union officials, which you initiated, and that you
did not seek additional explanation from Ms. Luther as I instructed
you to do. By choosing to vote against my instructions going into
the polling area against instruction posted that you were not to do
so, and by attempting to cast a vote in a union election though in a
status as a supervisor, you directly disobeyed my instructions and
in so doing undermined my own and the hospital’s expectations of
your behavior in the election and put the hospital at risk for an
unfair labor practice.
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Your actions are in violation of hospital policy – “an employee may
be … discharged for insubordination, including failing or refusing
to follow a supervisor’s instructions….”
Based on the seriousness of your decisions to ignore my
directives and to act in such a way that risked harm to the hospital
by appearing at the election to vote, your employment at the
[Employer] is terminated.
Luther testified that supervisors such as Galofaro were excluded from the voting unit and
were ineligible to vote and should not vote in the election. She was concerned that the Employer
would be subject to an unfair labor practice or an election objection if a supervisor voted,
possibly causing the election to be set aside.
Luther stated that in her meeting with Galofaro she asked if Galofaro was told that she
should not vote. Galofaro agreed but added that she did not believe King, and did not confirm
her eligibility with Luther as she was advised since she “got the answer she needed from the
Union.” She stated that in reaching the decision to discipline Galofaro she gave some weight to
the fact that Galofaro had attempted to persuade other supervisors to vote. In fact, another
supervisor told Harmon that Galofaro advised that she should vote,
Luther stated that Galofaro was discharged for insubordination in that, as a supervisor,
“if Mr. King had told her not to vote in the election, that if she were to vote in the election that
would be insubordinate,” adding that “I just felt that that’s going against what your supervisor
told you to do.” In reaching the decision Luther and King discussed the fact that King “was clear
in his expectation that the supervisors not vote.”
Luther explained that although the Employer has a progressive discipline policy,
insubordination is such a serious violation that the lower steps in that policy were bypassed.
Analysis and Discussion
The complaint alleges that Galofaro was discharged for voting in a Board election in
which her supervisory status was at issue. The Respondent argues that it did not discharge her
for voting in the election. Rather, it fired her for insubordination – for failing to follow its order
that she not vote.
The evidence supports a finding that Galofaro was discharged for voting in the election.
Even assuming that she was dismissed for insubordination in that regard, her disobedience was
that she voted in the election. In either case, it is clear that she was fired for voting. She was
told not to vote and she voted. She therefore was fired for voting in the election. Her discharge
was inextricably intertwined with her exercise of her right to vote.
A Supervisor’s Right to Vote
The right to vote in a Board-conducted election is inviolate. The Board has the
“responsibility to assure employees the ‘fullest freedom’ in the exercise of their right to
participate in a Board-conducted election. (National Labor Relations Act, Sec. 9(b).” Magnum
Transportation, Inc., 360 NLRB No. 129, slip op. at 1 (2014) (Member Miscimarra, concurring).
The protection of Section 7 of the Act includes the right to vote by secret ballot in a
Board-conducted election. Lawson Printers, Inc., 159 NLRB 771, 775 (1966). “Surely the act of
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voting lies at the core of the Section 7 right….” Concrete Form Walls, Inc., 346 NLRB 831, 839
(2006). As explained below, that Section 7 right applies to supervisors as well as employees.
Employees, including supervisors, have the right to present themselves at Board
elections and vote. However, not all individuals have a right to have their ballots counted. For
example, a supervisor may not have her ballot counted as she is ineligible to vote. Supervisors’
challenged ballots may or may not be counted, depending upon the parties’ agreement at the
election, or in post-election proceedings if the ballot is determinative of the election.
The supervisor may mistakenly and wrongly believe that she is eligible to vote, as
happened here. In any case, her vote may be challenged by the Board agent because her name
is not on the eligibility list. Her vote may be challenged on the ground that she is ineligible to
vote, but nonetheless she is permitted to vote without interference and without fear that she may
be discharged for voting. Supervisors routinely vote subject to challenge. See Frey Mechanical
Contractors, 270 NLRB 348, 352 (1984).
Indeed, the Board’s Representation Casehandling Manual states that the “challenge
procedure provides a method whereby a voter’s eligibility to vote may be called into question,
the ruling on the question may be at least temporarily reserved, and the questioned voter may
memorialize his/her desires in the event these desires should have relevance in the future….
The Board agent must challenge anyone whose name is not on the eligibility list….” Sections
11338.2(b) and 113.338.3.
The essential point is that a supervisor may not be barred from entering the voting room
by the Board agent or management. She has a right to cast a vote, even if challenged.
This case is different than the facts in Animal Trap Company of America, 107 NLRB
1193, 1194 (1954), where named supervisors were expressly excluded from an election by the
Board in a pre-election Decision. Nevertheless, they voted subject to challenge. The employer
argued that they should not have been permitted to vote. The Board refused to set aside the
election, stating that “while it would have been better practice for the Board agent to refuse to
permit them to vote, even under challenge, as the Board has already ruled on their eligibility, we
do not consider the fact that they nevertheless were permitted to vote in itself sufficient ground
for setting aside the election.”
Here, Galofaro was not expressly excluded from voting in a pre-election proceeding. She
was included in the broad category of “supervisors” who were deemed ineligible to vote.
However, she accordingly had a right to cast a challenged ballot.
A Supervisor’s Protection Under Section 8(a)(4) of the Act
Section 8(a)(4) of the Act states that it is an unfair labor practice for an employer to
“discharge or otherwise discriminate against an employee because he has filed charges or
given testimony under this Act.” The Board’s approach to this provision “has been a liberal one
in order to fully effectuate the section’s remedial purpose.” General Services, Inc., 229 NLRB
940, 941 (1977), relying on NLRB v. Scrivener, 405 U.S. 117, 124 (1972).
The broad language contained in Section 8(a)(4) has been
interpreted as being consistent with an intention to prevent the
Board’s channels of information from being dried-up by employer
intimidation of prospective complainants and witnesses…. The
Board has consistently given an expansive scope to the
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protections afforded by Section 8(a)(4), thereby conferring the
crucial importance of that section to the effective operation of the
National Labor Relations Act. The Supreme Court has approved
of the Board’s expansive interpretation of Section 8(a)(4) of the
Act. Thus, the Board has found that Section 8(a)(4) protects not
only employees, but supervisors…. Power Systems, Inc., 239
NLRB 445, 447 (1978).
It is this background of the broad interpretation given Section 8(a)(4) against which I
must analyze whether Galofaro’s discharge violated the Act.
Supervisors are not protected by the Act because, pursuant to Section 2(3) of the Act,
they are specifically excluded from the definition of “employee.” However, the Board has held
that supervisors are protected “when invoking or seeking to invoke the Board’s processes.” SNE
Enterprises, 347 NLRB 472, 497 (2006) citing Hi-Craft Clothing Co., 251 NLRB 1310 (1980);
General Services, Inc., 229 NLRB 940 (1977).
In Hi-Craft Clothing Co., above, the admitted supervisor, unhappy at not receiving a
bonus that he believed had been promised to him, advised his manager that he was “going to
the Labor Board.” When he repeated his intention to go to the Board, he was fired. The Board
affirmed the administrative law judge's finding that the discharge violated Section 8(a)(4) of the
Act, agreeing with the General Counsel's argument that there is a strong public policy favoring
the free and unimpeded access to the Board's processes and, therefore, supervisors should
also be protected when invoking, or seeking to invoke, the Board's processes. See also Metro
Networks,336 NLRB 63, 66 (2001).
In General Services, above, an individual was “unsure of his status as supervisor or
employee” and filed a charge alleging that he was fired for engaging in union activity. The Board
determined that he was a supervisor and dismissed the Section 8(a)(3) charge but held that he
was discharged in violation of Section 8(a)(4) for filing the charge. The Board stated that the
purpose of Section 8(a)(4) is to “assure an effective administration of the Act by providing
immunity to those who initiate or assist the Board in proceedings under the Act.” 229 NLRB at
941. The Board stated that the purpose of Section 8(a)(4) is to “protect from reprisal employees
who file unfair labor practice charges and thus encourage them to report such allegations to the
Board.”
Similarly, here, as in General Services, Galofaro was uncertain of her supervisory status
because of the conflicting opinions of the Union and her Employer. She may have been
mistaken about her status, but nevertheless sought to use the Board’s election processes to
confirm her voting status. Section 8(a)(4) protected her as it protected the supervisor in General
Services from discharge because she invoked the Board’s processes for that purpose.
The fact that in General Services the supervisor filed a charge and here Galofaro voted
in an election, does not require a different result. In each case the individual invoked the Board’s
processes - actions which involved the two central missions of the Board: preventing and
remedying unfair labor practices and conducting elections to enable employees to vote for or
against union representation.
Here, I find that Galofaro invoked the Board’s processes by exercising her right to vote in
the election. She believed that she was eligible to vote or at least eligible to cast a challenged
ballot based on the Union’s agents advising her that she was eligible and could cast such a
ballot.
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In fact, there was some uncertainty about Galofaro’s eligibility, as demonstrated by the
parties’ conduct at the conclusion of the election. Union agent Harmon argued that Galofaro
was not a supervisor and asked for proof of her supervisory status. Only when documents
signed by Galofaro were produced establishing to the Union’s satisfaction that she was a
supervisor, was her ballot not opened and counted.
The Board has held that an employer “must refrain from discriminating against an
individual for indicating an intent to go to the Board since it is the Board’s function, and not the
employer’s, to decide whether the individual is covered by the Act and his claim has merit.” Hi-
Craft, above, at 1310, fn. 2. Here, Galofaro voted in the election to determine whether she was,
in fact, eligible to vote. The Respondent violated the Act in discharging her for seeking such a
determination.
It is true that supervisors may be discharged for engaging in union activity or for
promoting a union. Daniel Construction Co., 266 NLRB 1090, 1095-1096 (1983), cited by the
Respondent. Here, the Respondent does not argue that Galofaro was discharged for such
activity. Indeed, it is undisputed that she agreed to present the Employer’s view that it did not
wish that its employees be represented by the Union. There is nothing unlawful in that view and
it was not unlawful for Galofaro to express that position to employees.
I accordingly find and conclude that the Respondent violated Section 8(a)(4) of the Act
by discharging Galofaro for voting in the Board-conducted election.
The Respondent’s Defenses
The Respondent argues that Galofaro was not discharged for voting, but was fired for
insubordination for failing to obey her supervisor’s orders that she not vote or enter the voting
room. An employer has an unquestioned right to discharge a supervisor for insubordination or
disloyalty. Parker-Robb Chevrolet, Inc., 262 NLRB 402, 404 (1982); Ozark Motor Lines, 164
NRLB 300 (1967).
However, an employer’s right to discharge a supervisor for insubordination is not
absolute. It has its limits. The Board has long held that the discharge of a supervisor for
insubordinately refusing to follow his employer’s order to engage in unfair labor practices
violates the Act. Belcher Towing Co., 238 NLRB 446, 447 (1978); Russell Stover Candies, 223
NLRB 592, 600 (1976); Jackson Tile Mfg. Co., 122 NLRB 764, 767 (1958); Vail Mfg. Co., 61
NLRB 1871, 182 (1945); Richter’s Bakery, 46 NLRB 447, 450 (1942).
Similarly, here, the Respondent fired Galofaro for insubordinately refusing its order to
refrain from voting. She was, effectively, discharged for voting.
“The maintenance of free access to the Board’s process, and prohibiting interference
therewith, is a duty reserved to the Board and is not to be delegated to the parties….Local No.
453 Molders, 208 NLRB 869, 872 (1974).
The Respondent argues that, by virtue of her appearance in the voting room, Galofaro
subjected it to an unfair labor practice charge or an election objection. I can appreciate the
Respondent’s concern, but the Board has long held that “the mere appearance of a supervisor
at the polls to vote without further incident is no basis for setting aside an election….” Dixie
Broadcasting Company, 120 NLR B 869, 870 (1958); Brown-Dunkin Company, 118 NLRB 1603,
1604 (1957).
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The Employer further argues that the purpose of a Board election is to enable
employees to choose whether they desire to be represented by a labor organization, not to
provide a forum for workers who seek a determination of their eligibility. The Respondent also
asserts that Galofaro was ineligible to vote because it is undisputed that she was a supervisor,
and she therefore she had no reason to vote.
The Respondent’s arguments have merit. However, Galofaro voted, whether innocently,
deliberately, or mistakenly believing the Union’s advice that she was not a supervisor and that
her ballot would be challenged. She could not lawfully be discharged for voting.
Indeed, when Galofaro asked Luther why she was not asked to leave the voting area if
she could not vote, Luther replied that she could not interfere with her as she was already
voting.
Luther was correct. The Respondent could not interfere with Galofaro as she was voting,
nor could it discriminate against her because she voted. The Board clearly expressed its
reasons for this policy in Concrete Form Walls, Inc., above at 839, where it stated that “the act
of voting lies at the core of the Section 7 right…. discharging an employee because she voted
represents a full frontal assault on the right to vote at all.”
A holding that an employer may discharge an employee, even a supervisor, for voting in
a Board-conducted election, would have a detrimental effect on employees seeking to vote in
such elections. Employees who believe that they are eligible to vote may refrain from voting for
fear of being fired. In that case, the employer, and not the Board, would effectively decide the
voting eligibility of the prospective voter.
In Ozark, above, the Board held that the supervisor’s discharge for insubordination was
not unlawful because his refusal to follow the employer’s orders that he meet with its attorney
and his refusal to sign a statement did not interfere with the rights of employees. Here, the
Respondent’s discharge of Galofaro for insubordination did interfere with the rights of
employees to vote.
I accordingly find that the Respondent’s discharge of Galofaro also constitutes a
violation of Section 8(a)(1) of the Act.
Conclusions of Law
1. By discharging its supervisor Anna Galofaro for voting in a Board-conducted election,
the Respondent violated Section 8(a)(1) and Section 8(a)(4) of the Act.
2. The unfair labor practices set forth above are unfair labor practices affecting
commerce within the meaning Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged and refused to reinstate Anna
Galofaro, it must offer her reinstatement to her former position or, if that position no longer
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exists, to a substantially equivalent position, without prejudice to her seniority or any other rights
or privileges she would have enjoyed absent the discrimination against her. Further, I shall
recommend that the Respondent make her whole for any loss of earnings and other benefits
suffered as a result of discrimination against her.
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No 8
(2010), enf. denied on other grounds sub. nom. Jackson Hospital Corp. v NLRB, 647 F.3d 1137
(D.C. Cir. 2011). In accord with Tortillas Dan Chavas, 361 NLRB No.10 (2014), my
recommended Order also requires the Respondent to (1) submit the appropriate documentation
to the Social Security Administration so that when backpay is paid to Galofaro, it will be
allocated to the appropriate calendar quarters, and/or (2) reimburse her for any additional
Federal and State income taxes she may be assessed as a consequence of receiving a lump-
sum backpay award covering more than 1 calendar year.
In accordance with the Board's decision in J. Piccini Flooring, 356 NLRB No. 9, slip op.
at 5-6 (2010), I shall recommend that the Respondent be required to distribute the attached
notice to members and employees electronically, if it is customary for the Respondent to
communicate with employees and members in that manner. Also in accordance with that
decision, the question as to whether a particular type of electronic notice is appropriate should
be resolved at the compliance stage. J. Piccini Flooring, above, slip op. at 3. See Teamsters
Local 25, 358 NLRB No. 15 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The Respondent, TLC Health Network d/b/a Lake Shore Health Care Center, Debtor-in-
Possession, Irving New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discharging employees because they voted in a Board-conducted election.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Anna Galofaro full
reinstatement 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 privileges previously enjoyed.
(b) Make Anna Galofaro whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, in the manner set forth in the remedy section of the

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
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decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Anna Galofaro in writing
that this has been done and that the discharge will not be used against her in any way.
(d) Within 14 days after service by the Region, post at its facility in Irving, New York,
copies of the attached notice marked “Appendix.” 5 Copies of the notice, on forms provided by
the Regional Director for Region 1, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since September 6,
2013.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. October 23, 2014
____________________
Steven Davis
Administrative Law Judge

5 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.”
JD(NY)–43–14
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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge employees because they voted in a Board-conducted election.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer Anna Galofaro full
reinstatement 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 privileges previously enjoyed.
WE WILL make Anna Galofaro whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the Anna Galofaro’s unlawful discharge, and within 3 days thereafter notify her in
writing that this has been done and that the discharge will not be used against her in any way.
TLC HEALTH NETWORK d/b/a LAKE SHORE
HEALTH CARE CENTER,
DEBTOR-IN-POSSESSION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
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130 S. Elmwood Avenue
Suite 630
Buffalo, New York 14202
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-113937 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 716-551-4946.