Tressler Lutheran Home for Children t/a Frostburg Village of Allegany County Nursing Home

National Labor Relations Board - Board Decisions

Aug 24, 1982

263 N.L.R.B. 651 (N.L.R.B. 1982)

FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
Tressler Lutheran Home for Children t/a Frostburg
Village of Allegany County Nursing Home and
United Food and Commercial Workers Union,
Local 692, United Food and Commercial Work-
ers International Union, AFL-CIO-CLC. Cases
5-CA-11890, 5-CA-12413, 5-CA-12424, and
5-CA-13010
August 24, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On August 28, 1981, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
t In its exceptions, Respondent contends that the Board's exercise of
jurisdiction here is improper because Respondent is affiliated with the
Lutheran Church of America. In finding that the assertion of jurisdiction
here is proper, we note that the Board considered and rejected Respond-
ent's contention in a prior proceeding involving Respondent, 254 NLRB
223 (1981).
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producte
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In agreeing with the Administrative Law Judge that Respondent vio-
lated Sec. 8(a)(Xl) of the Act when its administrator, Leo Cyr, told em-
ployees that he did not want them to discuss the Union in the building or
on company time, Chairman Van de Water and Member Hunter place no
reliance on T.R.W. Bearings Division. a Division of TR. W., Inc., 257
NLRB 442 (1981).
In the section of his Decision entitled "The Remedy," the Administra-
tive Law Judge found, inter alia, that since Respondent has exhibited
union animus and particularly directed its unlawful activities against the
discriminatees herein, it should be required to expunge all warnings from
the files of these employees even though some of these warnings were
not discriminatorily motivated. We disagree with the Administrative Law
Judge's recommendation and shall modify his recommended Order so as
to rcmedy only the specific violations found herein.
As the Administrative Law Judge found and we agree that Respondent
unlawfully discharged Ronald Hartman. Eleanor Bennett, Elizabeth
Beckman, Sally Wilburn, and Arlene Schrock, we shall also order the ex-
punction of any reference to these discharges from Respondent's files.
See Sterling Sugars Inc., 261 NLRB 472 (1982).
263 NLRB No. 42
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Tressler Lutheran Home for Children t/a Frost-
burg Village of Allegany County Nursing Home,
Frostburg, Maryland, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(d):
"(d) Revoke, rescind, and expunge from its
records the unlawful warning issued to Ronald
Hartman on November 27, 1979, and all references
thereto; the unlawful warning issued to Sally Wil-
burn in October 1979 and all references thereto;
and the unlawful suspension imposed on Arlene
Schrock on February 7, 1981, and all references
thereto."
2. Add the following as new paragraph 2(e) and
renumber subsequent paragraphs accordingly:
"(e) Expunge from its files any reference to the
discharges of Ronald Hartman, Eleanor Bennett,
Elizabeth Beckman, Sally Wilburn, and Arlene
Schrock and notify them in writing that this has
been done and that evidence of their unlawful dis-
charge will not be used as a basis for future person-
nel actions against them."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT interrogate our employees
concerning their union activities and sympa-
thies and the union activities and sympathies of
our other employees.
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT instruct our employees to
remove union pins from their uniforms.
WE WILL NOT create an impression among
our employees of surveillance of their activi-
ties on behalf of United Food and Commercial
Workers Union, Local 692, United Food and
Commercial Workers International Union,
AFL-CIO-CLC.
WE WILL NOT promulgate, maintain, and en-
force any rule or regulation prohibiting our
employees from soliciting on behalf of any
labor organization on our premises other than
immediate patient care areas, during our em-
ployees' nonworking time, or prohibit without
our written authorization the distribution of
union literature in nonworking areas during
our employees' nonworking time, and repri-
mand or warn our employees for violation
thereof.
WE WILL NOT direct our employees not to
talk about the Union in our facility or on com-
pany time.
WE WILL NOT promise our employees great-
er wage increases should they not select the
Union as their collective-bargaining repre-
sentative.
WE WILL NOT threaten our employees with
the loss of existing benefits and that we would
start from zero in bargaining with the Union
should they select the Union as their collec-
tive-bargaining representative.
WE WILL NOT threaten our employees with
discharge and unspecified reprisals for engag-
ing in union activities.
WE WILL NOT discharge, suspend, or other-
wise discipline our employees because of their
membership in, assistance to, or activities on
behalf of the Union.
WE WILL NOT discharge, suspend, or other-
wise discipline our employees because they
have testified in a proceeding under the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer Ronald Hartman, Eleanor
Bennett, Elizabeth Loar Beckman, Sally Wil-
burn, and Arlene Schrock immediate and full
reinstatement to their former positions or, if
such positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and
make them whole for any loss of earnings that
they may have suffered by reason of our dis-
crimination against them, with interest.
WE WILL reimburse Arlene Schrock for all
legal expenses incurred in her defense of the
charges of physical and mental abuse filed by
us with the Frostburg Police Department and
the Maryland Division of Licensing and Certi-
fication.
WE WILL notify, in writing, the Maryland
Division of Licensing and Certification, the
Frostburg Police Department, and any other
state, municipal, or local agency contacted in
connection with our charges against Arlene
Shrock, that all references to alleged patient
abuse by her are rescinded and that she has
been reinstated to her former position of em-
ployment, with full rights and privileges, pur-
suant to an Order of the National Labor Rela-
tioins Board; and send copies of said notices to
Schrock.
WE WILL revoke, rescind, and expunge from
our records the unlawful warning issued to
Ronald Hartman on November 17, 1979, and
all references thereto; the unlawful warning
issued to Sally Wilburn in October 1979 and
all references thereto; and the unlawful suspen-
sion imposed on Arlene Schrock on February
7, 1981, and all references thereto.
WE WILL expunge from our files any refer-
ence to the discharges of Ronald Hartman, El-
eanor Bennett, Elizaeth Loar Beckman, Sally
Wilburn, and Arlene Schrock and WE WILL
notify them in writing that this has been done
and that evidence of their unlawful discharge
will not be used as a basis for future personnel
actions against them.
WE WILL cease giving effect to and rescind
our rule prohibiting solicitation, distribution,
or posting of material or notices without prior
written authorization from our administrator
or insofar as it applies to the exercise of our
employees' rights under Section 7 of the Act
in areas of our facility other than those involv-
ing immediate patient care and insofar as it
prohibits distribution of union literature during
our employees' nonworking time in areas other
than immediate patient care areas of our facili-
ty.
TRESSLER LUTHERAN HOME FOR
CHILDREN T/A FROSTBURG VILLAGE
OF ALLEGANY COUNTY NURSING
HOME
652
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This proceeding, which was heard by me in Frostburg,
Maryland, on January 19-23 and 28-30, 1981, involves
the discharge of four employees allegedly in violation of
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended, 28 U.S.C. § 151, et seq., and numerous
alleged violations of Section 8(a)(1), based on charges
filed by United Food and Commercial Workers Union,
Local 692, United Food and Commercial Workers Inter-
national Union, AFL-CIO-CLC (herein the Union).
After the hearing closed and briefs were filed, a new
complaint issued in Case 5-CA-13010, based in part on
the discharge of another employee who testified during
January, it being alleged that the discharge was in viola-
tion of Section 8(a)(3), (4), and (1) of the Act.' Hearings
on that complaint were held in Cumberland, Maryland,
on May 13 and 14, 1981. Respondent denied that it vio-
lated the Act in any manner alleged in any of the com-
plaints.
Upon consideration of the entire record,2 including
my observation of the demeanor of the witness, and of
the briefs submitted by General Counsel and Respond-
ent, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Tressler Lutheran Home for Children, a nonprofit
Pennsylvania corporation, is engaged as a health care in-
stitution in the operation of and trades as Frostburg Vil-
lage of Allegany County Nursing Home (herein Re-
spondent or the Home) in Frostburg, Maryland. During
the 12 months prior to the issuance of the complaints,
representative periods, Respondent received gross rev-
enues in excess of $100,000 from the operation of the
Home and purchased and received, in interstate com-
merce, products valued in excess of $50,000 directly
from points located outside the State of Maryland. Al-
though Respondent denied that it is subject to the juris-
diction of the Act and filed a motion to dismiss the in-
stant proceeding, the Board has ruled (254 NLRB 223
(1981)) that Respondent is and has been at all times mate-
' The Union was formerly known as Retail Stores Employees Union.
Local 692, United Food and Commercial Workers Union, AFL-CIO,
and filed its initial charges under that name. Before the first day of hear-
ings, the Union reaffiliated, and a motion was made to amend the name
to reflect the Union's present name, which I granted without opposition.
The relevant docket entries are as follows: The charge in Case 5-CA-
11890 was filed on February 5, 1980, and amended on March 19, 1980,
and a complaint issued on March 20, 1980. The charge in Case 5-CA-
12413 was filed by the Union on July 18, 1980, and a complaint issued on
August 22, 1980. The charge in Case 5-CA-12424 was filed on July 22,
1980, and amended on August 1, 1980, and a complaint issued on August
22, 1980. The three complaints were consolidated for hearing on August
28, 1980, and, at the January hearings, additional amendments to certain
of the complaints were made. The charge in Case 5-CA-13010 was filed
on February 10, 1981, and amended on March 10, 1981, and a complaint
issued on April 9, 1981. On April 10, 1981, the General Counsel moved
to reopen the prior proceeding and to consolidate the new complaint
with the then closed proceeding. Over Respondent's opposition, I grant-
ed the motion by Order dated April 21, 1981.
a Certain errors in the transcript are hereby noted and corrected.
rial herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that
it will effectuate the policies of the Act to assert jurisdic-
tion over it. Being bound by Board law, I so conclude. I
also conclude, as Respondent admits, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
i. Background
The alleged unfair labor practices involved in the Jan-
uary 1981 hearings occurred before and after two repre-
sentation elections held at the Home. Upon a petition
filed by the Union on November 19, 1979, an election
was conducted on January 16, 1980, for a union of serv-
ice and maintenance employees, nursing assistants, physi-
cal therapy assistants, ward clerks, orderlies, dietary em-
ployees, housekeeping and laundry employees and main-
tenance employees, but excluding, inter alia, professional
employees, which included registered nurses (herein
RNs), who were stipulated to be supervisors within the
meaning of the Act, and licensed professional nurses
(herein LPNs). The Union won that election and was
certified, upon the overruling of Respondent's objections,
on April 15, 1980.
On May 2, 1980, the Union filed another petition, and
an election was held on June 12, 1980, this time for the
technical employees, which included and consisted solely
of LPNs, whom the Regional Director determined con-
stituted a residual group because they had frequent con-
tact with the nursing assistants, worked the same hours,
and had similar working conditions. A self-determination
election was therefore directed to determine whether the
LPNs wished to be included in the then existing service
and maintenance unit represented by the Union. The
Union won that election, too, and was certified on
August 26, 1980, after Respondent's additional objections
had been overruled, one of which, significant herein, was
that LPNs were supervisors and thus were ineligible to
vote.
2. The crux of the issues-credibility and
motivation
Each of the five employees allegedly performed acts
which could have contributed or led to Respondent's de-
cisions to impose discipline. The principal questions
herein are whether Respondent perceived of those acts
as serious violations requiring termination, or whether
the acts which were allegedly committed were merely
the pretexts to hide Respondent's ulterior illegal motive
to discharge the employees because they supported the
Union. In turn, whether there was illegal motivation
rests upon whether Respondent's witnesses were believ-
able, because each of its principals averred that union ac-
tivities played no part in their decisions.
There are a number of facts which play a part in this
Decision. Leo J. Cyr, Respondent's administrator, who
was called by the General Counsel as an adverse witness
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the first day of the January hearings, had almost no
recollection of the events which led to the discharges of
the employees. Eleven days later, when called by Re-
spondent to testify, Cyr's recollection had improved im-
measurably, testifying, often with specificity, to dates,
times, places, and events. I regard his sudden gain of in-
formation with intense suspicion.s In addition, I found
him frequently to be evasive and argumentative and, in
general, lacking in candor.
Another fact is that many of Respondent's current em-
ployees testified; and, although it may not be said with
assurance that their testimony must be regarded as truth-
ful, the mere fact that they placed their jobs at possible
risk by offending Respondent has been deemed to be
some indication that they would attempt to state the
truth as best they knew it. Georgia Rug Mill, 131 NLRB
1304, 1305, fn. 2 (1961), modified in other respects 308
F.2d 89 (5th Cir. 1962); Gold Standard Enterprises, Inc.;
Gold Standard Liquor Store at Ridge Avenue; Chalet Wine
and Cheese Shops, Ltd. at Fullerton Avenue; Chalet Wine
and Cheese Shops; Ltd. Highview Park, 234 NLRB 618
(1978), reversed on other grounds 607 F.2d 1208 (7th
Cir. 1979). Yet another fact which must be considered is
that much of Respondent's "proof" of many of the rule
violations was solely a narration by supervisors of what
employees reported to them. Although such testimony
was admitted to support contentions that the supervisors
were truly motivated by those reports, the hearsay state-
ments prove nothing else. Certainly, they do not lend
credence to whether the underlying violations upon
which Respondent relies were in fact committed. I have
taken into account the absence of the witnesses who
could have but did not support Respondent's underlying
defense.
Furthermore, to the extent that there is testimony
which conflicts with my findings, I credit the witnesses
whose testimony I rely upon. In making these credibility
findings, I have fully reviewed the entire record and
carefully observed the demeanor of all the witnesses. I
have also taken into consideration the apparent interests
of the witnesses; the inherent probabilities in light of
other events; corroboration or lack of it; and consisten-
cies or inconsistencies within the testimony of each wit-
ness and between the testimony of each and that of other
witnesses with similar apparent interests. Testimony in
contradiction to that upon which my factual findings are
based has been carefully considered but discredited.
Where necessary, however, I have set forth the precise
reasons for my credibility resolutions, bearing in mind
the oft-quoted advice: "It is no reason for refusing to
accept everything that a witness says, because you do
not believe all of it; nothing is more common in all kinds
of judicial decisions than to believe some and not all."
N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749,
754 (2d Cir. 1950). See, generally, N.L.R.B. v. Walton
Manufacturing Company & Logansville Pants Co., 369
U.S. 404, 408 (1962).
Finally, it is true that the discharges of some of the
employees might be viewed as overreactive in the cir-
' Another of Respondent's witnesses conceded that her recollection of
a fact resulted solely from being told it by Respondent's counsel.
cumstances. However, Board law makes clear that an
employer may discharge an employee for good reason,
for bad reason, or for no reason at all, as long as its deci-
sion is not motivated by the employee's protected con-
certed or union activities. But bad reasons or no reasons
have their limitations. Such may, with knowledge of the
employees' union activities, provide enough guidance to
conclude that the reason or lack of one was merely a
pretext for the only reason the employer actually had-
to rid itself of union activists and to discourage the union
adherence of other employees. Although the line may be
thin between a valid nonreason or valid bad reason and
an invalid pretextual reason, the line must be drawn in
these very difficult cases.
Respondent contends that the discipline it imposed
flows from violations by the employees of rules set forth
in its "Employees' Handbook," which provides certain
regulations established for the guidance of all employees
and states that "willful or inexcusable breaches of these
rules will be dealt with firmly under a uniform policy
which applies equally to all departments and all individ-
uals." On the other hand, the handbook also states that
Respondent's policy is "to be patient, sympathetic, fair
and tolerant in the administration of" the Home.
Of necessity, the departure from a "uniform policy"
which is "patient, sympathetic, fair and tolerant" must be
considered. These are Respondent's guidelines, and devi-
ations should be deemed suspect, at least to the extent of
determining whether illegal motivation was the true
cause of the discipline.
3. Respondent's rules and regulations
The specific rules and regulations which are at issue
are as follows:
GROUPI RULES:
Commitment of any of the following offenses will
result in:
Ist Offense: Oral warning with written notation
2nd Offense: Written warnings
3rd Offense: Termination of employment
1. Discourteous, inattentive or unprofessional
treatment of the patients/residents.
2. Disharmony with fellow employees, supervi-
sors, patients, doctors, visitors, auxiliaries or volun-
teers.
7. Solicitation. distribution or posting of material
or notices without prior written authorization from
the administrator.
8. Failure to report to work at the assigned time.
10. Leaving the facility during work hours with-
out permission of the supervisor.
* * * a a
654
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
12. Failure to give at least two hours notice prior
to reporting time of an illness or emergency pre-
venting work.
13. Interfering or interrupting the home oper-
ations while visiting in the work areas or on the
village/facility.
GROUP II R ULES:
Commitment of any of the following offenses will
result in:
Ist Offense: Written warning
2nd Offense: Termination of employment
3. Willingly negligent or knowingly failing to
report unsafe or unsanitary conditions.
4. Engaging in obscene, abusive language and/or
malicious gossip and/or the spreading of rumors, or
harassing fellow employees.
5. Absence from the work assignment without a
reasonable excuse. Documentation of the reason for
absence is required unless waived by the supervisor.
GROUP III R ULES:
Commitment of the following offenses:
Ist Offense: Cause for immediate termination
without warning.
2. Conviction of a crime.
4. Engaging in immoral conduct of indecency on
village/facility.
5. Physical or verbal mistreatment of the
residents/patients.
11. Insubordination.
14. Job abandonment.
NOTE: A combination of violation of any three
rules and regulations listed in Groups I and II shall
be just cause for termination of services; however,
personnel records will not accumulate a single vio-
lation of any rule in Groups I and II which does
not recur within one year from the date of the in-
fraction.
4. Pat Keller-a comparison study
As a gauge in determining Respondent's motivation, I
note its treatment of Pat Keller, one of its nursing assis-
tants, who was first disciplined when she left the Home
on October 12, 1979, over the expressed opposition of
her "immediate supervisor," Kathy Clise. For that, then
Acting Director of Nurses Phyllis Roque (and, since late
December 1979, director of nurses) gave her an oral
warning with written documentation for violation of
group I, rule 10. The warning was not signed by Keller,
Roque explaining that oral warnings did not have to be
signed.
On another occasion, which I infer took place later,
Keller called RN Edna Slonaker to inform her that she
could not come to work because she had no snow tires.
The roads, however, were clear of snow. For that, she
was given another oral warning, despite the fact that a
written warning seemingly was required because it was a
second offense of a group I rule.
On yet another occasion, Keller telephoned from Bal-
timore at or about noon, long after she was due to work,
and stated that she could not report to work. She was
given no warning. On yet other occasions, she did not
report to work, she came to work late, and she came to
work hung over. No discipline was meted out. In De-
cember 1979, Keller requested a leave of absence from
the Home; she was not discharged nor did Respondent
request that she take a leave of absence, even though,
shortly before, she had missed some days because of her
inability to work. Roque admitted that she told Keller
that, when she was able to work, she should notify Re-
spondent so that she might be rehired.
Although Roque testified that she had thought that
Keller favored the Union, it will become apparent, as
discussed, infra, that there was a more than adequate
basis for the discharge of Keller for violation of numer-
ous of Respondent's rules (including two, insubordination
and job abandonment, that seemingly required immediate
discharge); yet the option of termination was never exer-
cised, whereas the discriminatees herein were treated
much more harshly. That disparity forms a basis for the
conclusions reached herein.
B. The Discharge of Ronald Lee Hartman
Ronald Lee Hartman, with Sally Wilburn, another dis-
chargee, the principal and outspoken union adherent,
began employment as a nursing assistant in March 1979,
and was assigned to additional duties of keeping control
of supplies and, in July, of being the fire and safety coor-
dinator, for which he was paid an additional 35 cents per
hour. In mid-September, he began his efforts to organize
the employees, signed a union authorization card on Oc-
tober 1, and attended a union meeting with 20-25 other
employees on or about October 12. About a week
before, Cyr asked Hartman whether he had heard any-
thing about a union. Hartman replied that he had heard
some talk, but not much. This conversation was not
denied by Cyr; and I find and conclude that Cyr's con-
duct constitutes interrogation illegal under Section
8(aXl) of the Act.
Shortly after the first union meeting, on or about Oc-
tober 15 or 16, Cyr held a meeting of the employees in
the Home's dining room. He announced that there was a
union which was attempting to organize the employees,
but stated that he was not particularly concerned about it
and saw no need for it. Cyr stated that the employees
were receiving what Respondent could afford, and that a
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union could not get any more, because Respondent had
nothing more to give. Several employees spoke, one of
whom stated that, when a union organized employees,
the staff pays no attention to patient care. Hartman sug-
gested, however, that in his experience, it was not a
union which caused a decline in patient care, but a de-
crease of personnel at the facility.
About a week later, Cyr met with Hartman and stated
that Hartman had really fooled him and that he did not
realize that Hartman favored a union until Hartman
made his statement at the meeting. He said: "[L]et's put
our cards on the table and be honest with each other."
Hartman confessed that he favored the Union, that Re-
spondent was being unfair with its employees, and that a
union could be helpful. Cyr explained that there was
only so much money available, that Respondent was lim-
ited in great part to receipts of fixed Medicaid benefits,
and that there was not enough to give the employees
more. In addition, Cyr stated that Hartman's position as
fire and safety coordinator was causing him embarrass-
ment and problems with the supervisory staff, because
Hartman was being very open about his support of the
Union. About the same time, or perhaps toward the end
of October, RN Slonaker directed Hartman to remove
the union pin which he was wearing on his collar. Hart-
man told her that if she would remove her pin (a nursing
association pin) he would remove his. Slonaker coun-
tered that hers was a professional insignia. Hartman defi-
antly continued to wear his pin.
In late October, Hartman was removed from his posi-
tion as fire and safety coordinator. Two months later, on
January 2, 1980, he was terminated for reasons General
Counsel alleges are pretextual. First, the General Coun-
sel attacks the bona fides of an evaluation given to Hart-
man on September 13, 1979, noting that Hartman was
treated as a probationary employee and that Hartman
had long since completed his 90 days' probationary
period. However, the union organizing campaign had not
commenced by the date of his evaluation (September 10)
and Hartman had not become active in his support of the
Union by that date. I thus conclude that the evaluation,
which contains an oral warning about Hartman's failure
to follow a proper chain of command, to utilize his time
on patient care, and to report to work on time, was not
based on considerations which are illegal under the Act.
I have greater problems understanding Respondent's
position regarding its reevaluation of Hartman on No-
vember 20, 1979, more than a month after Respondent
first learned of Hartman's union adherence. On this
second evaluation, Hartman was still deemed a proba-
tionary employee. More important, Slonaker conceded
that Hartman's work, tardiness, and time engaged in pa-
tient care had improved, although he was still not fol-
lowing the proper chain of command;4 yet Respondent
graded Hartman lower in almost every category of its
evaluation and none of its witnesses adequately explained
why this was so. The second evaluation, as did the first,
provided that Hartman would again be reevaluated in
4 None of Respondent's witnesses knew what Hartman had done to be
criticized for not following a proper chain of command.
another 60 days (the first provided for reevaluation in 30
days), but Hartman's employment did not last that long.
On November 27, Hartman received his second warn-
ing. That morning, he had reported to work at 6 a.m., an
hour before his normal starting time, and awoke and pre-
pared his patients a half-hour earlier than usual so that he
could go to court to testify as a character witness for a
friend. At 7 a.m., he obtained permission from the two
LPNs on his station to leave. He left the premises about
8:30 a.m. and returned shortly after 10:30 a.m. Slonaker,
the RN on his station, was not present; and Hartman did
not ask permission of the RN on the other station or of
anyone else.
Hartman was warned for violations of group I, rule 10
and group II, rule 5. The General Counsel contends that
he violated neither rule, having left the Home with per-
mission of his supervisor and having had a reasonable
excuse. Respondent argues that Hartman should have
gone to RN King and that his excuse was not reasonable.
As to the latter contention, Roque testified that if Hart-
man had merely called in sick that day, even though he
was not sick, that would have satisfied her. She appeared
to be more concerned that Respondent had notice of
Hartman's absence from work, rather than attacking the
reasons for his absence. That claim is particularly una-
vailing in light of Respondent's frequent disregard of
Keller's absences. In any event, there was no proof that
Hartman's excuse was a sham; to the contrary, it was le-
gitimate and could not be construed as lacking in reason.
Respondent's argument that Hartman should have ob-
tained the approval of RN King rests on its duplicitous
interpretation of the meaning of "supervisor" set forth in
its rules. It concedes that LPNs supervised direct patient
care and directed the nursing assistants, albeit under the
overall control of the RN on duty. And there can be no
question that Respondent claimed, in its objections to the
Board-conducted election of LPNs, that LPNs were su-
pervisors, in order to upset the results of that election.
But, here, at the January hearing, it suited Respondent's
purpose to define a "supervisor" as excluding LPNs to
support the discipline of Hartman because he was a lead-
ing advocate of the Union. This conclusion is bolstered
by Respondent's use in the warning of two rule viola-
tions, one of which, that Hartman's court appearance
was not a reasonable excuse, was unsupported by any
evidence. Upon inquiry at the hearing, Roque posited
that the stating of two rule violations for the same act
would be considered as one warning, but there is nothing
in the rules, particularly the ambiguous "NOTE" quoted,
supra, which would indicate that to an employee. Rather,
it appears that the group II violation was inserted to
make the warning more severe than it actually and un-
justifiably was.
Furthermore, a comparison with Respondent's treat-
ment of Keller for a similar violation is once again help-
ful. Although Roque attempted to justify the disparity by
noting that Keller, in violation of "her immediate super-
visor's instructions," left the Home for only 15-20 min-
utes, the fact remains that Roque set forth only a group I
violation by Keller, not the additional group II violation
that Hartman was also charged with and not a group III
656
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
violation for insubordination, requiring immediate dis-
charge. Further, Clise, an assistant physical therapist or
rehabilitation aide, who was concededly an employee
within the meaning of the Act, was named as the "super-
visor" who denied Keller permission to leave the Home.
At the May hearing, Sue Ann Ostendorfe, one of Re-
spondent's supervisors, explained that it was the duty of
all nursing assistants to report claims of patient abuse to
their supervisors, who, she claimed, consisted of both
RNs and LPNs. I find nothing improper in Hartman's
obtaining of permission from the LPNs on his station. I
note that neither LPN testified. I credit Hartman's testi-
mony that he obtained their permission and discredit the
hearsay testimony of Roque that one of the LPNs ad-
vised her that Hartman simply told the LPN that he was
leaving and that he did not receive permission to do so. I
also note and credit Hartman's testimony that, prior to
the union campaign and with Roque's knowledge, he had
received permission from an LPN to leave the Home
and he was never warned therefor.
The final warning and Hartman's termination resulted
from two separate events. On January 2, 1980, Hartman
was in the room of Arta Gall, a resident who was hard
of hearing. Hartman testified that Gall, who had been a
member of a union in his earlier years, was talking about
unions. Hartman stated to Gall, in a loud voice so as to
be heard by Gall, but which was also overheard by a
passerby, that, if there were as many workers in the
Home as there were supervisors, there would be no
problems. Although at that time there was no prohibition
against employees talking with patients about the Union
or their union activities-indeed, employees were en-
couraged to talk with their patients in furtherance of Re-
spondent's policy of making the Home as much as a
"home" as possible-I find that Hartman's statement
went beyond the issues of union organization and em-
ployees dissatisfaction and attacked and belittled Re-
spondent's management of the Home. It, therefore, ex-
ceeded the bounds of propriety and Respondent could
readily find that his remark was offensive and tended to
create disharmony, possibly within the broad definition
of group I, rule 2.
But Hartman's discussion the same day with Norma
Simpson exceeded no such bounds, and in fact constitut-
ed protected concerted activities. Employees had made
known their concern that one employee had been coun-
seled for eating a piece of toast in the residents' dining
room, whereas other employees were allowed the use of
the dining room. Because this constituted an economic
benefit, their concern was protected. Hartman talked
with Simpson in the laundry room and asked whether,
when she ate in the dining room, she had to pay for her
meal. He opined that her free meal violated the Act.
Simpson said that she was allowed to eat there only
when she was acting as a supervisor.
Contrary to Simpson's testimony and that of Mary
Ella Zimmerman, supervisor of the housekeeping and
laundry departments, I find it difficult to believe that
Simpson was being harassed by Hartman. Nor do I find
that any disharmony was created, unless Respondent
suggests that "disharmony" is synonymous with "differ-
ence of opinion." If that truly portrays Respondent's
case, any time there is an organizing campaign at a facili-
ty, with some employees favoring organization and
others opposed to it, an employer could terminate any
employee it wished. However, inasmuch as any concert-
ed activity must commence with some sort of communi-
cation which may or may not be received favorably, it
would nullify the right to engage in such activity if pro-
tection were denied because the communication failed to
bear fruit. Mushroom Transportation Company, Inc. v.
N.LR.B., 330 F.2d 683 (3d Cir. 1964). The gist of Re-
spondent's brief on this point appears to concede the
concerted nature of Hartman's discussion, while arguing
that the activity was not protected because Hartman was
away from his own work duties as he talked with Simp-
son. It is true that the location of his discussion was
raised in the testimony, but ever so slightly. I find that
Respondent was principally concerned with the subject
matter of the discussion, not its location. In any event, of
all the rules in Respondent's guidelines, no matter how
broadly they were interpreted from time to time, Hart-
man was never charged with being away from his work-
site at the time of his discussion. The charges made were
solely "disharmony" and "harassment."
I conclude that the Act protects this conversation and
that the discipline of him violated Section 8(a)(1) of the
Act. It further violated Section 8(a)(3) because I find no
basis for the charge of violation of Respondent's rule,
other than Hartman's well-known union activities. As
Cyr stated, he felt that Hartman had been trying to
"create mistrust of management" and that the Simpson
incident "just confirmed really, the mental state that he
was in and that he had been in for sometime, obviously."
That "mental state," I conclude, was Hartman's pro-
motion of the Union. Similarly, I find Roque's descrip-
tion of Hartman as "defiant" and her statements that "he
involved himself in areas where he had no business in-
volving himself in" and that she had a problem with his
"general attitude" are all indicative that support of the
Union motivated Respondent's discipline and discharge
of Hartman.
As a result, at the time of Hartman's termination, I
find valid only his prior oral warning on the evaluation,
dated September 13, 1979, and the warning for creating
disharmony in his conversation with a resident on Janu-
ary 2, 1980. Under Respondent's rules, these two viola-
tions are insufficient to support Respondent's discharge
of Hartman, which I conclude violated Section 8(aX3)
and (1) of the Act.5
As previously concluded, Respondent, in Cyr's first
conversation with Hartman, engaged in illegal interroga-
tion in violation of Section 8(a)(1). Cyr's second conver-
sation with Hartman about a week after his meeting with
the employees on or about October 15 or 16 suffered
from the same infirmity, again in violation of Section
4 Respondent contends throughout its brief that its handbook set forth
a procedure whereby employees could grieve any of their problems or
concerns to their supervisors, then to Respondent's administration, and
then to Respondent's office in Pennsylvania. and that the failure of the
discriminatees herein (including Hartnman) to follow that procedure con-
stitutes "acquiescence ... that the written warnings were justified." No
legal authority is given to support this contention, which I find lacks
commonsense, logic, and legal justification.
657
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1). The complaint also alleges that, by Cyr's state-
ments that the Union would be unable to "squeeze blood
out of a turnip," created a feeling of futility in violation
of the Act. Even in the context of Respondent's other
unfair labor practices found herein, Respondent did not
indicate that it would not bargain or that such bargaining
would result in absolutely no benefits or gains or, for
that matter, no written agreement. Nor does the record
demonstrate that Respondent's assessment of its financial
status was incorrect. Madison Midwest Nursing Care, Inc.,
d/b/a Anna-Henry Nursing Home, 236 NLRB 1135, 1139
(1978), is analogous. There, the employer claimed that it
could not guarantee a raise. Here, Cyr did little more. I
find no violation. Finally, I find that Slonaker's direction
to Hartman to remove his union pin also violated Section
8(a)(l) of the Act. There is nothing to indicate that the
wearing of a union pin violated any of Respondent's
rules. Although in a health facility there is clearly a dif-
ference between the wearing of a professional and union
pin, Slonaker's direction was intended only to impede
union activities, and for no other justifiable and reason-
able business purpose. St. Joseph's Hospital, 225 NLRB
348 (1976).
C. The Discharge of Eleanor Bennett
Eleanor Bennett was a part-time housekeeper who
worked on all weekends and holidays and substituted for
employees who were on vacation or sick. She also
worked on other days pursuant to a schedule prepared
by Zimmerman who posted it on the employees' bulletin
board on a Friday, every 2 weeks, for a 2-week period
commencing the following Wednesday.
Respondent's knowledge that Bennett was engaged in
union activities is based on Bennett's conversations with
Norma Simpson and Shirley Spiker, both alleged to be
agents and supervisors within the meaning of Section
2(11) of the Act, which allegations Respondent denied.
Bennett testified that Spiker was the acting supervisor of
the kitchen department, when admitted Supervisor
Norma Scarpelli was not present; and that she saw
Spiker designated as acting supervisor on forms Bennett
had to fill out. The record is barren of any other testimo-
ny regarding Spiker's duties and responsibilities. There
was substantially more testimony regarding Simpson,
who was Zimmerman's assistant; was in charge of the
office when Zimmerman was out of town; infrequently
performed Zimmerman's functions, such as writing up
orders, taking inventories, and handing out checks; from
time to time ate with the Home's residents, as did other
supervisors; and was treated as a supervisor by Respond-
ent, which instructed her not to vote in the first election
a few days prior to that election.S
Bennett, a member of the union organizing committee,
attended almost all the union meetings, made telephone
calls to employees to persuade them to become active in
the Union, and tried to enlist employees to come to
union meetings. She testified that in late November or
early December, she attempted to persuade both Simp-
son and Spiker to sign union cards and asked both of
s Simpson stated that she had been advised not to vote by Cyr; Cyr
denied that he did.
them to attend union meetings to listen to the union
claims, because both related their negative reactions to
the union organizing drive.
I conclude that the General Counsel has not produced
sufficient evidence of Spiker's supervisory status, there
being nothing in the record to show what powers she ex-
ercises and what she does. Her designation as acting su-
pervisor is insufficient proof of her status. Henry A.
Young, d/b/a Columbia Engineers International, 249
NLRB 1023, 1030, fn. 11 (1980). Whether Simpson was a
supervisor or agent is a closer question; at least some
proof was elicited about what she did. But neither Hart-
man nor Bennett understood her to be a supervisor or
Respondent's agent, Hartman discussing with her why
she ate in the dining room when other employees were
not permitted to do so, and Bennett asking her to come
to union meetings and to sign a union card. Nor does
Bennett's testimony support a finding that Simpson exer-
cised supervisory powers. Notwithstanding these conclu-
sions, I find that, as hereafter discussed, Respondent had
knowledge of Bennett's union activities.
Bennett's employment record was perfect from the
date she was first employed, January 27, 1979, until
shortly after she approached both Simpson and Spiker.
On December 19, 1979, she was given a warning for an
incident which had occurred a month before, on Satur-
day, November 17, 1979. She and other housekeepers
were directed to clean up the arts and crafts room for a
special affair. 7 While waxing two large tables in the
room, Bennett used a can of spray wax which she
sprayed directly onto the tables; but some wax was
sprayed beyond the sides of the tables and onto the floor,
which became slippery as a result. When that condition
was recognized, Bennett and her fellow employees
mopped the floor twice in order to clean off the wax;
and, when they left, they put up a sign stating "Wet
Floor." Apparently, the slick had not been fully eliminat-
ed, and someone slipped and fell later that day.
Respondent did not call any of the employees to tes-
tify about this incident, but instead relied upon the testi-
mony of Zimmerman, who testified to the results of her
investigation-that she examined the floor the following
Monday and found it to be like an "ice skating pond,"
that she talked during the following week with three of
the housekeepers and none knew about wax spilling on
the floor, but that, a month later, one employee had in-
formed her that Bennett went around the room with a
can of Pledge wax and sprayed it all over the floor. Be-
cause the loom was 50 by 70 feet, I find the latter fact
highly unlikely, and equally improbable that Zimmerman
would believe it.8
7 Zimmerman testified that the housekeepers were to clean only the
floors that Saturday. Why that would be necessary in light of the fact
that the floors are waxed by male maintenance employees every Friday
was unexplained.
8 In its brief, Respondent explains that the efforts of all the housekeep-
ers to wash the floor merely spread the wax throughout the room. If that
were so, and it is contrary to what Zimmerman stated that she had been
told by one housekeeper, then all of the housekeepers would have clearly
been involved in creating the dangerous condition. Yet, only Bennett was
disciplined.
658
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
Further, I distrust her narration, which attempts to
support the warning solely by uncorroborated hearsay
testimony. Although the results of her investigation were
admitted to determine Zimmerman's motivation, Re-
spondent must prove its case by something more substan-
tial. In light of the admission that signs were posted indi-
cating that the floor was slippery, I find that the other
housekeepers must have been aware of the condition and
Zimmerman's testimony of her conversations with the
housekeepers should not be credited. Rather, I accept
her concession that she felt that unions had no place in
nursing homes and credit Bennett's testimony (and dis-
credit Zimmerman's denial) that on or about November
3, 1979, the day after a union meeting at which Bennett
was named a member of the Union's organizing commit-
tee, Zimmerman stated to her that she was aware of
union organizing going on in her department, that she
was aware that there had been a union meeting the prior
night, and that she had lived long enough without a
union and was going lo do so now. Her knowledge, I
infer, must be attributed to Simpson, who, if not her
closest and most intimate friend, was clearly more than
Zimmerman's employee and who attended a union meet-
ing in early November which was (I again infer) the one
at which Bennett was designated a member of the
Union's organizing committee. Without this knowledge,
Zimmerman would have had no reason to make her
statement to Bennett about the union meeting.9
When Zimmerman's motivation was put to the test,
the facts of the events leading to Bennett's second warn-
ing and her discharge fall into place. As noted above,
Zimmerman normally posted the work schedule for her
department on Friday. She did not do so on Friday, Jan-
uary 4, 1980. When Bennett worked that weekend, Janu-
ary 5 and 6, the schedule had not been posted; and Ben-
nett assumed that her next dates of employment were to
be the following Saturday and Sunday, as they always
had been. When she arrived for work on January 12, she
looked at the schedule which had been posted the pre-
ceding Monday, and found that she was off that Satur-
day but had been scheduled for Friday, January 11. She
reported to RN King that she was at the Home and
asked whether she should work. Upon King's advice,
Bennett telephoned Zimmerman at home, and Zimmer-
man said that Bennett should follow the schedule-
"whatever it says, you do." Bennett went home.
On Monday, January 14, 1980, Zimmerman gave Ben-
nett a warning notice and informed her of four alleged
wrongs: (1) that she did not report off on January 11; (2)
that she caused a disturbance on January 12; (3) that she
went into the storeroom on January 12 and put wax on
the floor, in the same way as she did on November 17,
1979; and (4) that she had taken one of Zimmerman's an-
9 Zimmerman admitted that she knew of Bennett's union adherence
only on December 19 because, when she gave Bennett the first warning,
Bennett replied that Zimmerman should realize that she was putting Ben-
nett between the Union and Respondent. By crediting Bennett's testimo-
ny, I find that, although not specifically alleged in the complaint, Zim-
merman engaged in giving Bennett the impression of surveillance of her
union activities. The matter was fully litigated by the parties and is suffi-
ciently related to the subject matter of the complaints to justify a specific
finding of a violation of Sec. 8(a)(1) of the Act. Southwestern Bell Tele-
phone Company, 237 NLRB 110 (1978).
tiunion posters off the bulletin board, rumpled it, and
threw it on the floor. Bennett explained to Zimmerman
why she had missed work on January 11 and denied at
the hearing the rest of the allegations. Zimmerman told
Bennett to go home and come back on January 19, when
her case would be further discussed. When Bennett
stated that she had no way home, Zimmerman said that
was her problem. Bennett met Cyr and explained that
she was worried about a remark she had made the previ-
ous Saturday that Cyr would pay for her cab home. Cyr
replied that she ought not worry about it, and further
"Next week is the election. After the election, if every-
one votes the right way, this will be a good place to
work. Now, keep that in mind."
Bennett voted in the election on January 16, without
challenge. Bennett reported for her meeting on January
19, while Zimmerman was preparing a new schedule for
the housekeeping department. Zimmerman commented,
"By now, I'm sure that you're aware that the Union won
the vote." When Bennett noted that Zimmerman was
making up a new schedule, Zimmerman said that the
schedule was none of her concern and asked Bennett to
sign a resignation. Bennett refused and, after some dis-
cussion of the events of the week before, was terminated.
The above is based on Bennett's testimony and Zim-
merman's failure to contradict Bennett's testimony of the
remark about the union election victory. I discredit Zim-
merman's other testimony and various denials for the
same reasons as stated above. Again, the overall effect of
Respondent's case was diminished by its failure to cor-
roborate Zimmerman's hearsay testimony and, thus, its
lack of any evidence to support directly the charges
made against Bennett, with the exception of Bennett's ab-
sence on January 11. The hearsay will simply not with-
stand scrutiny when applied to the principle of fairness
outlined in Respondent's rules.10 The absence of January
11, although Bennett may not have been totally blame-
less,"t was caused essentially by Zimmerman's failure to
post the schedule so that part-time weekend workers
could see it.
Zimmerman, despite her acknowledged duty to run
her department efficiently and her responsibility to
ensure that employees are made aware of the days that
they are expected to work and to ensure that the em-
ployees work those hours, contended that the schedule
was posted timely; and only upon prodding did she con-
cede that Bennett, when she completed her work on
Sunday, January 5, 1980, could not have seen the sched-
ule, because it had not yet been posted. Yet, she made no
attempt to advise Bennett that she was to work on
Friday, January 11, insisting that it was Bennett's respon-
'o As discussed, infir, concerning the discharge of Sally Wilburn, Re-
spondent argues in its brief that certain statements made by a resident
should not be credited, as follows: "All the testimony about what Mr.
McMullen allegedly stated is hearsay, tainted with all of the defects of
hearsay testimony."
1I Bennett testified that she telephoned Zimmerman twice at home,
without success, to see if she had been assigned to work that week. She
also testified that she attempted to reach King at the Home, also without
success. However, Bennett testified that she averaged 3 to 4 days' work
each week, and she must have ssumed that she would be scheduled to
work on days other than the weekend.
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sibility, and hers alone, to check the schedule, testifying
that other part-time employees had called her. 2 The dif-
ficulty with this explanation is that Zimmerman had ear-
lier testified that the other part-time housekeepers had
not called. Although Zimmerman's rationale may be ex-
plained as simply an exercise of double standards,' 3 the
inconsistency is nonetheless important in assessing
whether her professed motivation is credible.
This inconsistency is not the only one contained in her
testimony. Zimmerman attributed the rescheduling of
Bennett to only weekdays and giving her off on the
weekend for the first time since Bennett started work on
January 27, 1979, to a requirement set by Respondent at
its home office in Pennsylvania that Zimmerman reduce
the hours of her staff. Thus, she began to give the part-
time housekeepers weekends off so that only four house-
keepers would work on weekends, rather than five. As
noted above, one of Bennett's violations was an alleged
disturbance ("disharmony") on January 12, caused in
part by her erasure and alteration of the schedule which
was Zimmerman's first implementation of the new
policy. With Bennett not scheduled for the weekend of
January 11-12, there were only four housekeepers sched-
uled, consistent with Zimmerman's testimony. But incon-
sistent is the fact that Zimmerman scheduled five house-
keepers for the following weekend, thus making her ra-
tionale for the change of schedules, at best, questionable.
I found that Bennett was a truthful and sincere wit-
ness' 4 and have little reason to believe that she would
alter the schedule (or that she would purposefully create
a dangerous condition by waxing floors with a known
slippery substance)."5 In addition, I discredit the basis of
Zimmerman's allegations, because her assumption that
Bennett erased that portion of the schedule which indi-
cated that she was to work on Monday, January 13,
cannot be reconciled with the fact that Bennett reported
to work that Monday (after erasing the notation that she
was to work on Monday). Zimmerman seemingly put
this discrepancy out of mind, declaring that Bennett had
told her that the reason she reported for work on
Monday was that she called the Home late Sunday night
and had a nursing assistant check the schedule to ascer-
12 RN Margaret Ann Grimes Elliott testified that on a number of oc-
casions, when an employee had not reported to work, she called the em-
ployee to find out what the problem was. She issued no warnings.
'a Zimmerman frequently discussed religion with another housekeeper
during working hours. That apparently presented no problem to Zimmer-
man, but Hartman's discussion of working conditions with Simpson
during working hours was not to be equally tolerated.
" To the contrary, I have discredited materially the testimony of Zim-
merman Although it is often difficult, if not imposaible, to articulate the
reasons for credibility determinations based solely on demeanor, I note
that in critical portions of Zimmerman's cross-examination, her voice
cracked and she became visibly nervous.
Is Zimmerman sought to create a rationale for Bennett's actions by ex-
plaining that she had scheduled Bennett for a day off on Thanksgiving
Day and that Bennett was angry that she had not been given Christmas
Day, to which she was entitled if preference by seniority had been fol-
lowed. However, Zimmerman's understanding of Bennett's motivation
was narrated almost solely through hearsay statements: not one of the
housekeeping employees so testified. I cannot credit Zimmerman's hear-
say testimony. In one respect, Zimmerman testified to some direct knowl-
edge-that she had been told by Bennett of her complaints on the tele-
phone. However, earlier in Zimmerman's testimony, she testified inconsis-
tently that she never discussed Thanksgiving Day with Bennett. I dis-
credit her later testimony to the contrary.
tain whether she was scheduled for work. There is no
evidence that Bennett went to the Home between Satur-
day and Monday, and Zimmerman, knowing that the
schedule had been altered, should have wondered how
the assistant read that Bennett was scheduled to work on
Monday, when Bennett erased the entry the previous
day.
Zimmerman never questioned this, but made broad,
unsubstantiated assumptions of Bennett's culpability.'6 I
have no doubt that Zimmerman criticized Bennett for
her removal of an antiunion leaflet from the employees'
bulletin board, even though Zimmerman, conceding that
her recollection was unclear, insisted that she found
crumpled on the floor an advertisement for a "soup
sale," which was of no moment and which would not
have been a topic for her criticism of Bennett. But there
is mention in Zimmerman's January 18, 1980, warning of
Bennett of "four different counts," and I find it signifi-
cant that Zimmerman would recall the insignificant soup
sale leaflet. Indeed, it would be more in keeping with
Zimmerman's attitude that she would blame Bennett for
the removal and crumpling of an antiunion leaflet, which
Zimmerman conceded she often posted. I credit Ben-
nett's denial of this incident and her narration that it was
an envelope containing an anniversary card from her
children which was the document involved.
The warnings that Zimmerman gave are further indic-
ative of Zimmerman's motive, for she expanded upon the
alleged violations in a way that implied that Zimmerman
was seeking to make her punishment stick. As to the No-
vember 1979 incident, she warned Bennett both for cre-
ating the slippery condition and not reporting the haz-
ardous condition. 'Bennett testified that she reported the
matter to the ward clerk, because Zimmerman was not at
work that day and because it was the clerk who was in
charge of the intercom and would have been able to seek
out the appropriate authority to rectify the situation.
Zimmerman stated that only she should have been ad-
vised and that notifying the ward clerk was inappropri-
ate. Later, she said that during her investigation and
before she gave Bennett the warning, she checked with
the ward clerk who could not remember whether Ben-
nett had so informed her. Still later, she recanted, stating
that she did not check with the clerk until after the
warning was given. Why she would have asked the ward
clerk only after the warning was unexplained; and I find
it improbable that she checked with the clerk at all.
I further find that Bennett's selection of the ward
clerk, instead of telephoning Zimmerman, was not a vio-
lation of any of Respondent's rules. The rule which Ben-
nett is alleged to have violated does not state a duty to
report the condition to a supervisor, but only an obliga-
tion to report it. The hazard, if it was such, was clearly
marked by Bennett, and was evident even by the follow-
ing Monday. Further, if the condition were as serious as
Zimmerman indicated, it is curious that, once informed
of it on Saturday, she did not report to work until
1' Assumptions were part and parcel of Zimmerman's actions. Instead
of testifying that Bennett telephoned her at home a little after 7 a.m. on
Saturday, January II 1, she stated that Bennett came to work a little after 7
a.m.
060
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
Monday and she did not give warnings to the other
housekeepers who must have been aware of the alleged
hazard. ' 7
Weighed against Respondent's avowed policy of fair-
ness, Zimmerman's treatment of Bennett falls far short in
the balance. This initial warning of December was based
on statements of various employees, none of whom Re-
spondent saw fit to produce. I infer that they would not
have testified as Zimmerman would have me believe.
The second and final warning was a mixture of the same
faults which pervaded the first. Bennett was warned not
only for failing to appear for her day's work but also for
failing to give 2 hours' notice that she would not appear,
a single violation compounded into two violations and
sharply different from Respondent's treatment of Keller
(although similar to Respondent's treatment of Hartman).
Furthermore, the second warning, according to Zimmer-
man, encompassed the same conduct which gave rise to
the first warning, Zimmerman explaining that the dishar-
mony involved in the second warning was Bennett's de-
liberate spraying of wax which caused the arts and crafts
room floor to become slippery. In explanation, Zimmer-
man then began to expand upon the faults she found
with Bennett's conduct, testifying that Bennett had
missed an earlier weekend and that the disharmony she
had created was "just one incident after another," com-
mencing in November 1979 (coincident with the early
stages of the Union's organizing drive).
As may already be evident, I found Zimmerman's tes-
timony to be inconsistent and contradictory, and I do not
credit her. Rather, I find that her conduct varied from
the dictates of fairness mandated by Respondent's regula-
tions, particularly in light of the testimony of other of
Respondent's witnesses that supervisors often excused
absences without notice or, at least, did not issue warn-
ings because of such conduct. In these circumstances, the
reasons for the discharge of Bennett, unsupported almost
completely by persons who witnessed the violations for
which Bennett was discharged-and, particularly, the
discharge occurring after the hiatus of her employment,
and only after the Union won the election-are pretex-
tual at best, lacking and unbelievable at worst. I con-
clude that her discharge violated Section 8(a)(3) and (1)
of the Act.
The complaint alleges that Respondent also violated
Section 8(a)(1) of the Act by Zimmerman's telling Ben-
nett that her removal of the antiunion petition was a
factor in the decision to discharge her. General Counsel's
brief does not indicate the theory of this allegation,
which I find in these circumstances fails to state a viola-
tion of the Act. It is true, as discussed, infra, that Re-
spondent's rule prohibiting the posting of notices violat-
ed the Act. That does not imply that a necessary corol-
lary to the right of union adherents to post notices is the
right to remove posters they do not like. If employees do
not have the latter right, then it is not improper for an
employer to tell them so. I so conclude.
1" If there were such a hazard-an "ice skating pond" query, why the
Home left the floor in that condition over the weekend.
D. The Discharge of Elizabeth Loar Beckman
Elizabeth Loar Beckman, an employee since January
15, 1979, originally a nursing assistant and then a ward
clerk, was terminated on January 30, 1980, after her
second incident of alleged use of obscenities in violation
of group II, rule 4. Although the General Counsel makes
some contentions about the inequity of the first violation,
the written warning could not have been motivated by
any illegal purpose under the Act, because it occurred
on June 30, 1979, months prior to the beginning of union
organization. The inquiry then turns to the events of Jan-
uary 30, 1980, which Respondent claims constitute the
second offense which justified Beckman's discharge for
group II violations.
Despite Roque's denial, I find that Respondent was
aware of Beckman's support of the Union. Beckman,
who appeared to be a sincere young lady, albeit one en-
dowed with a quick and sometimes acerbic tongue, had
been aware that certain tensions arose with the onset of
the union drive. After Roque gave a speech to the nurs-
ing staff in early December 1979, Beckman felt that
Roque was correct in complaining that the employees
had been treating her differently since the union cam-
paign started and had been paying too much attention to
union organization to the detriment of patient care. As a
result, she told Roque and Margaret Ann Grimes, her
RN, that, although she was for the Union and was going
to vote for it, she was sorry if she treated them different-
ly and hoped her union support would not interfere with
their friendship. A few weeks or so before, she had also
expressed her support of the Union to Harriet King.
King did not testify, and Grimes essentially supported
Beckman's narrative, which I find credible. And, because
Grimes corroborated Beckman's testimony, I find it
probable that Beckman also expressed her thoughts to
Roque, despite Roque's testimony that one day Beckman,
upset, stated to her that they were friends, that Roque
should not worry about her because the employees did
not need a union, and that she was not for the Union. I
discredit Roque's testimony, finding it improbable that
Beckman would express her support for the Union to
two supervisors, yet state the opposite to a third.
What went on at Beckman's desk on the afternoon of
January 30, 1980, was subject to differing testimony.
Beckman testified that LPN Maria Shockey came to her
desk to call Roque to explain that her patient was in bad
health and that the patient's physician stated that he did
not have time to come to the Home. Shockey said she
could not believe the doctor's attitude, to which Beck-
man commented: "If there were less assholes in the
world, it would be a better place," and therapist Kathy
Clise said that the doctor would probably wait until the
patient died and only then would he come to the Home
to sign a death certificate.
Sometime later, Beckman's mother, who had quit her
job at the Home I or 2 days before, telephoned Beckman
and told her that one of the nursing assistants had called
her to say that another assistant had seen in her person-
nel file, a sheet of paper indicating that she had quit and
that her leaving was all right because the Home needed
dependable people anyway. Beckman told her mother
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that anyone had access to open file folders, that informa-
tion of that kind should have been placed in a sealed en-
velope, and that it was unprofessional to leave it in an
open folder.' 8
Assistant Activities Director Faith Bittner, a supervi-
sor and daughter of another of Respondent's supervisors,
testified that she heard Beckman state that the facility
was being run unprofessionally; that, if there were not so
many assholes, it might be better; and that she would
take up these matters with the Union, which would take
care of them-and that is what she told Roque later,
when she also reported that some of the patients' charts
were missing. But Bittner was more bitter and upset
about what one of the other employees, in the company
of two others, had said about her as she left the nurses'
station-to wit, "There goes another asshole." Roque,
apparently unconcerned with the latter obscenity and
with what appeared to be a clear allegation of harassing
other employees-indeed, Roque at the hearing could
not recall that Bittner said anything about the other em-
ployees-seized upon the Beckman incident and asked
Bittner to prepare an immediate report on only that inci-
dent, which constituted Beckman's second warning for
use of obscenities and the alleged cause for her dis-
charge.
No satisfactory explanation was given by Roque why
she targeted Beckman alone for discipline. I discredit her
denial of knowledge (or lack of recollection) that she
was told by Bittner of the verbal abuse that she was sub-
jected to by the three other employees; and I discredit
her narration of the incident. According to her, Bittner
approached her in her office "just about hysterical . . .
crying and upset." Bittner related first that Beckman said
"unprofessional assholes in the world" and "this facility
being run by unprofessional assholes"; and, second, that
Jenkins (not Bittner) had been referred to as unprofes-
sional. I find it wholly improbable that either of these
events could have caused Bittner to be "hysterical," as
Roque testified, and find that Bittner was upset, as she
admitted, and that her emotional state was affected solely
by what was said to her and about her. Roque was, in
her testimony, attempting to conceal that fact, knowing
that her choice of Beckman as the sole subject of disci-
pline could not be justified when compared to the failure
to punish the actual wrongdoers.
Finally, even if I credited Roque's testimony, I would
be constrained to find that, so strongly was she motivat-
ed by a desire to rid her staff of union adherents, she
closed her mind to rule violations committed by other
employees.' 9 At Beckman's exit interview on February
5, 1980, Cyr announced that since the "shenanigans" had
commenced, Beckman's attitude had drastically changed.
Those "shenanigans" could mean only the union cam-
paign and Beckman's support of the Union, the factors
" I recognize that this statement is critical of Respondent, but it was
made not to or in the presence of a coherent patient. Further, Respond-
ent's warning to Beckman was solely for the use of an obscenity. Thus,
this incident is different from that involving patient Gall and Hartman.
"0 While I find that Roque's insistence that Beckman be disciplined, to
the exclusion of the other employees, evidenced disparity, I reject Gener-
al Counsel's additional theory that the use of obscenities by employees
had generally been condoned, although the rule appears to have been en-
forced only somewhat sporadically.
which I find motivated her discharge. Cyr's comment
that Beckman had no understanding of the "role she had
to play in working in the framework of the context of a
nursing home" has meaning only in the "context" of the
union campaign. Roque's statement that Beckman's atti-
tude had "changed" has similar import.
I conclude, therefore, that Respondent fired Beckman
because of her union activities in violation of Section
8(a)(3) and (1) of the Act and that her use of an obscen-
ity was merely the excuse and pretext to conceal Re-
spondent's actual motivation. 20 The complaint also al-
leges that Cyr's comment at the exit interview constitut-
ed an independent violation of Section 8(a)(1) of the Act
by "implying" that Beckman's union activity was a
factor in Respondent's determination to discharge her.
The pleadings thus suggest an alternative that Beckman's
discharge did not violate Section 8(a)(3) of the Act, but
Respondent's implication of illegal motivation violated
Section 8(a)(l). It may be that such conclusions may
some day be made; but it would seem that, once the im-
plication is found, the motivation for the discharge,
which is of the essence in these proceedings, has been
proved, and no further independent violations need be
considered. In light of my findings, supra, I will dismiss
this allegation as redundant.
E. Additional Alleged 8(a)(1) Violations
Before considering the remaining two discharges
which are subjects of the complaints herein, it is neces-
sary to consider some miscellaneous alleged violations of
Section 8(a)(l) of the Act, some of which bear tangen-
tially upon the discharges of the employees, discussed
supra, and especially upon the discharges of both nursing
assistants Sally Wilburn and Arlene Schrock, the latter
of whom testified at the January hearing to a number of
violations.
In October 1979, Kay Trantham, then director of
nurses, asked Schrock what the Union had to offer that
Trantham could not. When Schrock asked Trantham
what she was talking about, Trantham asked her whether
she had heard about the Union, to which Schrock an-
swered that she had heard rumors; but Schrock appar-
'o My conclusion is based on the conflict between the testimony of
Bittner and Roque and my disbelief of Roque's testimony inl its entirety
regarding this incident. I also note that, late in the January hearings, Re-
spondent also relied, for the very first time, upon Beckmaul's overall
work record, a clear shift from the reasons originally interposed as the
basis for her discharge. It is thus unnecessary to resolve the conflict be-
tween Bittner and Beckman, although I am inclined to credit Beckman's
testimony that she was not impugning the integrity of the Home. Bittner,
the daughter of a supervisor and herself a low-level supervisor, stated as
fact testimony which had been given to her by Respondent's attorneys
prior to the hearing, was utterly confused as to meaninigful dates and
times, and changed her testimony about the effects of being called an ob-
scenity (at first, it made no impression and then, on cross-examination. it
upset her). From these facts, as well as her demeanor, Bittner demon-
strated her opposition to the Union and willingness to side with Respond-
ent. In addition, Bittner's testimony about Beckman's statemcnt that she
would correct the problems with the aid of the Union gives more closely
with Beckman's testimony of her concern that her mother's file, contain-
ing adverse criticism, had been left open to the view of Respondent's em-
ployees. In crediting Beckman rather that Biltncr, I am aware of other
conflicts relating to Beckman's testimony, arid credit Gnmes, whom I
found to be sincere and truthful, wherever her testimony conflicts with
Beckman's.
662
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
ently kept whatever information she had to herself. In
any event, Trantham repeated her first question, telling
Schrock that the benefits granted by Respondent were
the best in the area. Trantham did not testify, and I con-
clude that she engaged in interrogation illegal under Sec-
tion 8(a)(1) of the Act.
Schrock also testified that in or about October 1979
she was very upset and frustrated with the patient care
being given on other shifts and complained to Roque
about it. Roque acknowledged that it had been going on
and that employees had been "slacking off... since the
union was coming in." Roque stated that she was sick of
hearing about the "damn" union, that she would like to
get rid of a lot of people, but that, while the union drive
was going on, there was nothing she could do about
them. General Counsel alleges that this constituted an
implied threat to discharge employees because of their
union activities. I do not read her statements that broad-
ly. Rather, it appears that Roque was concerned with the
possible effects of discharging employees upon the suc-
cess of the union organizing campaign, then in its early
stages, the first petition being filed in November. If em-
ployees had indeed not been performing their work be-
cause their interest was primarily directed to the union
campaign, their union activities would not have insulated
them from discharge. That Roque later threw this cau-
tion to the proverbial winds, as she clearly did, and, as I
have found, for reasons violative of the Act, does not
transform her October statement into an illegal threat.
I do, however, find an illegal 8(aX1) threat by Roque
(testified to by Schrock) in her statements on July 22,
1980, 6 days after the LPN election, at a meeting of
LPNs and nursing assistants from unit 2. Roque said that
she was sick of the employees' attitudes, that they ought
to come to work with smiles on their faces, and that: "If
you think I've played prick before, you haven't seen any-
thing yet." She added that, just because the Union had
won, did not mean that she could not fire anybody, that
she had about 20 unfair labor practice charges filed
against her and that she did not care if she had 20
more-she would still fire the employees. Clearly, the
threat was one which reasonably could be understood by
employees to be linked to the Union's successful cam-
paign to become the employees' collective-bargaining
agent.
The complaint also alleges that in February 1980,
Roque promised employees benefits should the employ-
ees cross a picket line. Apparently, this is based on the
testimony of nursing assistant Kelly Jenkins, who stated
that, while discussing with Roque the possibility of em-
ployees at another nursing home going on strike, Roque
said that, if Respondent's employees went on strike, they
could be fired because the strike was illegal-"that the
Union was not in and did not have a contract." Some-
thing, according to Jenkins, was said by Roque about
there being "plenty of benefits." Although I have other-
wise credited Jenkins, I found her recall of this conversa-
tion, which she testified to most haltingly, to be minimal
and do not rely upon it. I dismiss the allegation. For the
same reasons, I reject the General Counsel's attempt to
convert the original allegation of a promise of benefits
into one of an illegal threat of discharge.
In April or May 1980, Cyr held a meeting of all RNs,
LPNs, and nursing assistants in which he complained,
inter alia, of union stickers and literature being posted all
over the Home. He stated that he did not want the
Union discussed in the building or on company time. Al-
though health facilities may justifiably limit union solici-
tation and distribution areas other than those involving
patient care, N.L.R.B. v. Beth Israel Hospital, 437 U.S.
483 (1978), there is no legal justification for Cyr's overly
broad prohibition, which I conclude violates Section
8(aX1) of the Act. St. John's Hospital and School of Nurs-
ing, Inc., 222 NLRB 1150 (1976), enfd. in relevant part
557 F.2d 1368 (10th Cir. 1977); T.R. W. Bearings Division,
a Division of T.R. W., Inc., 257 NLRB 442 (1981).
The last of the otherwise unrelated 8(a)(1) violations
occurred on July 11, 1980, 5 days prior to the LPNs'
election. Roque and Slonaker held a meeting of LPNs at
which Roque stated, and Slonaker reiterated, that, when
the LPNs joined the Union, a raise would be given to
the Home's administrative employees and RNs, but not
the LPNs; that, if the LPNs did not belong to the Union,
they would get a raise, too; that they would also get a
raise when the union employees received a raise, so that
the LPNs would get two raises by not belonging to the
Union, but only one, if they belonged to the Union.
Roque further stated that the cost-of-living increase, pre-
viously granted in January and July, would be given
only on July 1, but later reversed herself, saying that the
Union would sue for it and it would be granted. Roque
also stated that when Respondent had to bargain with
the Union, the employees would lose all benefits and
would have to start from zero.
The complaint alleges that Respondent violated the
Act only by (1) promising greater wage increases to em-
ployees should they not select the Union and (2) threat-
ening a loss of all existing benefits, should the employees
select the Union. I conclude that Respondent violated
Section 8(a)(1) of the Act in both respects. N.LR.B. v.
Exchange Parts Co., 375 U.S. 405, 409 (1964); Plastronics,
Inc., 233 NLRB 155 (1977).
F. The Discharge of Sally Wilburn
Sally Wilburn, another of Respondent's nursing assis-
tants, was continuously employed from December 22,
1978, to July 17, 1980, when she was terminated. There
is no issue that, along with Hartman, she was the most
vocal employee in her support of the Union and that her
union activities were well known to Respondent. Re-
spondent has denied that some of Wilburn's allegations
of 8(a)(1) violations occurred, but I found her to be gen-
erally truthful and candid, whereas, as stated above, I
have little regard for Cyr's truthfulness; and I found that
Roque was so entirely overwhelmed by her perceptions
of the Union's lurking behind all the faults of the Home
that she was willing to risk the discharge of those she
felt were union adherents and chance infractions of the
Act.
Wilburn, like other employees, was subjected to illegal
interrogation about her union activities. In mid-October
1979, Cyr asked her what the Union could give to her
that Respondent could not. Wilburn replied: "Better
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions and job security." Cyr stated that the
patients would suffer because their fees would have to be
increased, but Wilburn stated that she could not see how
that would come about. Cyr then stated that he did not
think as much of Wilburn as he did before the union
campaign and that she was not "the same girl." Wilburn
replied that employees had a right to be union members.
After this conversation, Wilburn complained to the
Union, which wrote a letter to Cyr; and Cyr apologized
to Wilburn, stating that he did not realize that he was
badgering and harassing her.
That same month, Wilburn received her first warning.
She posted a piece of union literature on the employees'
bulletin board in the nurses lounge. RN Slonaker told
her to take it down, which Wilburn did. Sometime later,
Slonaker advised her that she was not allowed to put
anything up and that the bulletin board was hers so that
she could post notices to the employees. Wilburn was
given a warning.
Respondent contends that its policy permitted the
posting of notices only with the permission of its man-
agement. However, the bulletin board was used for no-
tices other than Slonaker's business: posted from time to
time were thank you notes from patients, announcements
of weddings and baby showers, menus, and advertise-
ments.21 Although Respondent contended that all letters
and postcards were censored in the administration office
before being sent to the nurses or their assistants (includ-
ing Cyr's initialing his approval on some of the posted
material), I have little faith in that testimony. In any
event, so long as Respondent permitted the nonbusiness-
related material to remain on the bulletin board, there is
in this record no legitimate business justification to sup-
port its right to permit the posting of union-related mate-
rial only upon its permission to do so. Requiring an em-
ployee to submit such material for Respondent's inspec-
tion would permit Respondent to ascertain who support-
ed the Union and who did not. It is hornbook law that
Respondent may not interrogate employees to ascertain
their union sympathies. Respondent may not do indirect-
ly by applying and enforcing its rule what it may not do
directly. Further, it is clear that Respondent may not
condition the exercise of Section 7 rights upon its own
authorization. John H. Swisher & Sons, Inc., 211 NLRB
777, 779, fn. 7 (1974).22 I conclude that the rule violates
Section 8(a)(1) of the Act and Respondent's discipline of
Wilburn on the basis of the illegal rule violates Section
8(a)(3) and (1) of the Act.23
" In addition, Slonaker posted antiunion leaflets on the bulletin boards
(as did Zimmerman) and distributed antiunion material to employees in
the employee lounges and in immediate patient-care areas.
as Respondent contends that Wilburn was a vocal and open union sup-
porter in October 1979 and could have requested authorization from Cyr
without fear of disclosing her union adherence. That is not Board law.
ITT Automotive Electrical Products Division, 231 NLRB 878 (1977); PPG
Industries Inc. Lexington Plant, Fiber Glass Division, 251 NLRB 146
(1980)
" Respondent complains that the underlying validity of its rule forbid-
ding solicitation was never alleged as an independent unfair labor prac-
tice. However, see fn. 9, supra, and my comments during the hearing that
I felt it necessary to consider this matter. Even had Respondent intro-
duced evidence of a business justification, that would have been unavail-
ing in light of its own antiunion solicitation and use of the bulletin
boards.
On July 2, 1980, after work, Wilburn was involved in
an altercation in the Home's parking lot with fellow em-
ployees Kelly Jenkins and Barbara Rafferty. As a result,
Roque suspended each employee for 3 days2 4 and disci-
plined RN Sherry Yutze for her failure to report to
Roque that the employees had been bickering all day and
that they had engaged in the altercation that after-
noon. a2 Roque warned each employee that they were
never to discuss the incident again, under penalty of dis-
charge.
The final incident occurred 2 weeks later. According
to Wilburn, as she was walking down the hall, she heard
a disturbance coming from the room of one of the resi-
dents, Abby McMuller. Entering the room, she found
nursing assistants Delores Broadwater and Linda Rich-
ards taking soiled clothes off McMullen, who was yellng
"Union, union . . . the tall man [Cyr] is trying to get us
to say something bad about you [Wilburn] . . . If it
wasn't for you, I wouldn't have a dress on my back."
Prior to Wilburn's entrance, McMullen had complained
to the other assistants that Cyr had directed her to come
to his office, where he had attempted to obtain informa-
tion from McMullen to use to terminate Wilburn.
Indeed, the day before, Broadwater and Richards were
in McMullen's room when Cyr entered and asked
McMullen to come to his office when she was able to do
so.
When RN Linda Sandman entered the room to see
what the commotion was about, Wilburn said he used no
loud language in front of McMullen, but she complained
to Sandman, in essence: "Look what they're doing to
her. They have no right to do this," all in agreement
with what McMullen was saying. Later, she and two
other employees met with Sandman, who told them not
to mention the incident to anyone. Still later, apparently
after Sandman had reported this incident to Roque,
Sandman again met with Wilburn, alone, and criticized
Wilburn for her behavior. Wilburn protested that this in-
cident and the fight with Jenkins were being used by Re-
spondent as a pretext to have her fired. The next morn-
ing, Sandman took Wilburn to the office where Sandman
stated that she had thought Wilburn had been warned
about talking about the parking lot incident. Wilburn
protested that she did not believe that incident had been
disclosed publicly. Without much further discussion,
Sandman presented a warning notice to Wilburn about
her conduct in McMullen's room and her discussion of
the parking lot incident, and Wilburn was terminated.2 6
"4 The General Counsel contends that there is no proof that Jenkins
was suspended, relying in part on Respondent's failure to produce Jen-
kins' warning. It was not incumbent upon Respondent to do so: the Gen-
eral Counsel could have subpoenaed the document. In any event, I note
that Jenkins, although denying that she had been told that she was sus-
pended, testified only that she asked for time off, and Roque stated that
she was going to suggest it anyway.
2s The discipline of Yutze should be compared with Zimmerman's fail-
ure to discipline the other housekeepers who knew of the dangerous and
slippery floor allegedly created by Bennett and failed to report the same.
26 In so finding. I discredit Wilburn's testimony that she never was in-
formed of the reasons for her discharge. I do credit her with respect to
Roque's unwillingness to give Wilburn the reasons for termination in
writing.
664
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
Broadwater and Richards essentially corroborated
Wilburn's narration of the incidents in McMullen's room,
in that the commotion was caused solely by McMullen,
and not by Wilburn. Sandman, however, placed more
emphasis on the loudness of Wilburn, whom she heard
yelling: "Now look what they've done. They shouldn't
be allowed to do this." And, contrary to Roque, who
testified that Sandman reported that McMullen was yell-
ing "Union, union, union, I'm sick of hearing of it,"
Sandman testified that she did not hear what the patient
had said, but that Wilburn explained to her that Cyr had
called McMullen to his office and instructed her to
watch over Wilburn.
As a result, according to Sandman, she reported the
incident to Roque, explaining that it was very unethical
for a patient to be asked to spy. She also discussed the
behavior of the three employees as being loud and bois-
terous, and Roque directed her to tell the three employ-
ees that their behavior was not accepted. Sandman testi-
fied that she told the three employees that, and that it
was not only unethical to ask a patient to spy, but that
she did not believe it because there was no need to spy.
Wilburn replied that Sandman did not know what kind
of people she was working for, that Jenkins was ready to
talk, and that the actions were part of a master plot, par-
ticularly by Slonaker and Roque, to terminate Wilburn.
Sandman replied that she did not care about these allega-
tions; that the only matter of importance was the need
for peaceful working relationships. Therefore, she ad-
vised the employees that she did not want to hear the
conversation brought up again, because it was disruptive.
After speaking with Roque again, a warning notice was
prepared on July 17, 1980, accusing Wilburn of viola-
tions of group I, rule 2, and group II, rule 4.
Interestingly, when Sandman first talked to Roque,
Roque testified that, without investigation, she was con-
vinced that McMullen's complaint had no basis, and the
only issue she raised was that there should be some sem-
blance of order in the patients' hall, which is the reason
Roque requested Sandman to return to speak alone to
Wilburn. But it also is apparent that Roque's immediate
attention was drawn to the allegations against Wilburn.
Indeed, regarding the fight in the parking lot, although
Roque ultimately meted out equal discipline to the three
employees involved, she encouraged (with Monica
Mason, Respondent's assistant administrator) Jenkins to
file criminal charges against Wilburn, noting that, if Wil-
burn were guilty, that would constitute a group III rule
violation which would cause Wilburn's immediate termi-
nation. Later, Roque stated to Jenkins that she should
not withhold issuing subpoenas, as Respondent would
ensure that full coverage of staff would be provided to
make up for those employees who were required to
appear in court.
With this background of Roque's more than passing in-
terest in Wilburn, as well as the earlier warning of Wil-
burn for her posting of union literature,2 7 the motivation
a7 Wilburn was requested by Slonaker and Roque to sign this warning,
Wilburn's first. She declined to do so, with the comment that "they told
her not to do so." As a result, both Slonaker and Roque documented
Wilburn's refusal. These facts must be compared with Roque's treatment
of Keller, who did not sign her first oral warning, with wntten documen-
for Wilburn's discharge becomes evident. First, I note
that Respondent's explanation for its actions against Wil-
burn was inconsistent, shifting, and contradictory. Roque
testified that, after speaking with Wilburn on July 18, she
and Cyr agreed that they had "no choice" but to termi-
nate Wilburn. 2 8 However, Roque later admitted, in dis-
cussing Keller, that despite the fact that Keller had com-
mitted violations serious enough to warrant termination,
supervisors had discretion whether and how to discipline
their employees. Roque testified that Wilburn's dishar-
mony was that created between her, McMullen, and the
two employees; yet she conceded that they were all in
agreement and there was no disharmony. On the other
hand, Sandman ascribed the disharmony as between Wil-
burn and her, and indirectly Roque and Cyr, by making
the accusations that Cyr was trying to get her and put-
ting McMullen up to spy.
Wilburn's disruptive behavior was variously character-
ized as her agreement with McMullen's statements
(Roque) and her harassing McMullen for spying and get-
ting her upset (Sandman). Wilburn's spreading a rumor
resulted from the fact that there was no basis for
McMullen's comments, which Wilburn stated as factual
(Sandman), because Wilburn stated that Jenkins was
ready to tell all that she had been told to "get" Wilburn
(Sandman), and because she made mention of a plot and
was wrong to have believed McMullen's comments
(Roque).2 9 Sandman acknowledged that Broadwater was
also upset, making a comment that "they should not be
allowed to do this" and "look at how upset they have
got her"; but Sandman, for reasons unexplained, did not
find that Broadwater's words constituted a rumor or dis-
harmony, in violation of Respondent's rules. 30 Roque
stated that one of Wilburn's failures was that she did not
investigate the matter; later, she admitted that Wilburn
attempted to contact Monica Mason but was prevented
from doing so by Sandman. But, argued Roque, that
effort would have been unavailing in any event, because
Mason did not know anything.
These shifts and turns in the testimony of Respondent's
witnesses lead me to conclude that its testimony should
be discredited, that Wilburn's testimony as recited above
should be credited, 3 ' and that the discharge was, in any
tation, because, according to Roque, such a warning was not required to
be signed. The request of Wilburn can be deemed only as a method to
establish a predicate for the later discharge of Wilburn.
28 In itself, this is an interesting admission, since Roque had earlier tes-
tified that, before she and Cyr decided to terminate Wilburn. they con-
sulted with Respondent's home office in Pennsylvania. If there was "no
choice," query, why did they feel the need to seek the guidance of the
home office?
2s Despite Roque's firm belief that Cyr would not have asked a patient
to spy on an employee, she testified that she asked Cyr whether he did
so, which was inconsistent with Cyr's testimony that she did not ask him.
Further, I discredit Sandman's testimony that, when she originally went
to Roque to report the incident, she told Roque that it was unethical for
Cyr to use patients to spy on employees. Because Sandman did not be-
lieve that allegation, I find no reason for her so to report to Roque.
so Sandman also admitted that, if Wilburn had not made her statement
in front of McMullen, nor alleged it as fact before the other employees,
but instead had mentioned it to Sandman in private, there would have
been no violation of group II, rule 4.
3i In making this finding, I have not disregarded certain inconsisten-
cies in Wilburn's testimony and contradictions between her testimony and
that of other witnesses. Nonetheless, I find that she was essentially reli-
able and that most of her testimony should be credited.
665
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
event, unwarranted. Whatever disruption there was is at-
tributable to the actions of McMullen, and Wilburn had
no part in that, other than to parrot the statements of
McMullen and to report to RN Sandman what had hap-
pened, which it must be presumed was the duty of a
nursing assistant. Further, it is clear that Wilburn had
been told by Roque not to discuss3 2 the parking lot inci-
dent, but I have difficulty in finding that Wilburn's mere
mention33 of that event to Sandman, without any em-
ployee being present, constituted a discussion, which
Roque said she would not tolerate. I have particular dif-
ficulty in finding any reasonable relationship between
Wilburn's statement and the group II, rule 4 violation for
which Wilburn was cited. Neither Roque nor Sandman
conditioned her discharge on anything but a vague belief
in avoiding disharmony among the employees vis-a-vis
their relations with the Home's residents. I find no simi-
lar disharmony created by Wilburn's statement made in
private to Sandman. Nor, apparently, had Respondent
deemed that Jenkins violated its directions when Jenkins
desired to pursue her criminal charges against Wilburn.
Despite numerous "discussions" of the parking lot inci-
dent, Jenkins, rather than being disciplined, was urged to
go forward and was offered Respondent's aid. In any
event, even if there might arguably be some basis for
Wilburn's discharge resulting from her mention of the
parking lot incident, 34 and I hold there was not, none-
theless Wilburn's at best minor breach of Roque's warn-
ing was merely a pretextual reason for her discharge, her
union activities being Respondent's real motivation. 3 5
This conclusion is confirmed by Sandman's assumption
that the reason why McMullen was saying "Union,
union, union" was that the three employees had been dis-
cussing the Union in her presence. Indeed, Sandman ad-
mitted that "one of the things I told Sally, had it not
been discussed in front of [McMullen], she couldn't have
s2 Roque stated that she informed each of the employees individually,
after their 3 days' suspension that:
... it was finished, that I did not want to hear any more discussion
of it, that I didn't want it carried over back to the patient area, and
that they each could consider that in itself a warning, that if indeed
they did bring it up again an[d] start the same situation over again,
because at that time, as I counseled each one of them, I informed
them without warning they each could have been terminated; they
had broken enough rules.
as The American Heritage Dictionary of the English Language (Ist ed.
1969), defines "mention" as "to cite or refer to incidentally." "Discuss. in-
volves close examination of a subject .... "
34 Wilburn admitted that, if she ever brought up the parking lot inci-
dent on the premises, "that would be it." When the alleged violation of
that warning was called to her attention, she defended herself by noting
that she had not discussed the matters with other employees.
36 I requested that the parties submit briefs on the issue of whether
Wilburn was engaged in concerted protected activities, which was barred
by Respondent's prohibition of any discussion of the parking lot incident.
Upon reconsideration of this matter, I find that Wilburn's claim was
purely personal and not concerted, for the benefit of other employees.
However, during this proceeding, it was revealed that on numerous occa-
sions, employees were forbidden from discussing various matters which
arose at the Home, many of which involved their own discipline, a sub-
ject matter which I deem is just as much of concern to those employees
as are their wages and hours of work. Board law makes clear that such
restrictions and prohibitions adversely impinge upon employees' Sec. 7
rights. Jeannette Corporation, 217 NLRB 653 (1975), enfd. 532 F.2d 916
(3d Cir. 1976); Texas Instruments Incorporated, 236 NLRB 68 (1978), enfd.
in relevant part 599 F.2d 1067, 1073 (Ist Cir. 1979).
made that kind of statement." When this is coupled with
Roque's assumption (proven or not) that the employees'
union activities were interfering with patient care and
that Cyr would never have attempted to use a patient to
thwart union activities, the conclusion is clear that
Roque, too, thought that Wilburn, the outspoken union
adherent, whom Sandman characterized "as a leader
among her peers" and a "mood setter," was causing
McMullen's distress, and it was those perceived activities
that caused Wilburn's discharge.3 6
Accordingly, I find that there was no basis for Wil-
burn's discharge, which I conclude violated Section
8(a)(3) and (1) of the Act.
G. The Discharge of Arlene Schrock
On February 4, 1981, 7 days after the initial hearing
had closed, Sue Ann Ostendorfe. Respondent's social
service director, met resident Meta Seifarth, who was sit-
ting in a wheelchair outside of the main bath and who
appeared to Ostendorfe to be unhappy or upset. Osten-
dorfe asked what was wrong, and Seifarth told her that
she felt she was being mistreated; that Arlene Schrock,
the nursing assistant in charge of her direct patient care,
would not answer her lights, would not take her to the
bathroom when she asked, and would not permit her to
make decisions about what she could wear; and that
Schrock would come into her room and "curse at her
about having to come in and clean up shit and that she
was going to get out of this damn job."
Ostendorfe asked for Roque's advice; and Roque
stated that she would investigate the matter, which she
did, obtaining the same complaints from Seifarth as had
been told to Ostendorfe. Later, Ostendorfe met with Cyr
and Roque and mentioned that this might be "patient
abuse" under the recently enacted article 43, § 565G of
the annotated code of Maryland entitled "Resident abuse
in nursing homes." 37 Cyr and Roque then decided to
Jr The General Counsel also argues that the reasons for Wilburn's dis-
charge should be discredited because (1) Respondent deliberately with-
held informing Wilburn of these reasons and (2) Sandman stated to all
employees, after Wilburn's discharge, that no employee was to speak of
either Wilburn's discharge or the parking lot incident, the latter being
just as much a discussion of that incident as Wilburn engaged in. As to
(I), I discredit Wilburn's testimony that she was not so advised; as to (2),
I note that the testimony of Jenkins, Richards, Broadwater, nursing assist-
ant Caroline Weems, and Sandman was in conflict. I find that General
Counsel did not prove this fact by a preponderance of the evidence.
a' Sec. 565G reads as follows:
(a) Definitions.--In this section, the following words have the mean-
ing indicated:
(I) "Abuse" means any physical injury sustained or neglect which
is detrimental to the physical or mental well-being of a patient in a
nursing home resulting from cruel or inhumane treatment. "Abuse"
does not include the performance of accepted medical procedures or-
dered by a licensed physician.
(2) "Nursing home" means the definition found in § 566(eX1) of
this article.
(3) "Law-enforcement agency" means any police department, bureau
or force of any county or Baltimore City and police department,
bureau or force of any incorporated municipality or the Maryland
State Police.
(b) Duty to reporrt.--Any person who has reason to believe that a
person in a nursing home has been abused shall report the abuse to
an appropriate law enforcement agency and the Secretary of Health
and Mental Hygiene. The report may be oral or in writing and shall
Continued
666
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
proceed under that statute and reported the incident to
the Frostburg Police Department police even before
talking with Schrock and Coleen Fisher, another nursing
assistant who was Schrock's partner and was named by
Seifarth as not permitting (with Schrock) the patient to
wear the frocks she desired. On the following day,
Thursday, Feburary 5, Roque suspended Fisher for the
day, with pay. She was going to suspend Schrock that
day, too, but Schrock had called in sick the preceding
evening and did not report for work on Thursday.
Schrock's normal day off was Friday; and so early in the
morning on Saturday, February 7, Roque called Schrock
into her office and announced that Schrock was suspend-
ed and that the matter had been turned over to the
police. She also announced that she wanted Schrock to
return as soon as Roque knew what was going on and
the complaint had been cleared up.
The police then commenced its investigation. Seifarth
was asked to repeat her story; she refused, on the ground
that she did not wish to get anyone in trouble and did
not wish the incident to go any further. Based on that, as
well as the failure of the investigation to reveal anything
otherwise supporting the charge, the police decided that
no further action was warranted. Roque and Cyr, still
dissatisfied, urged the police to conduct a more complete
investigation and, when successful, arranged for inter-
views with other nursing assistants who worked in the
same station as Schrock. Those interviews resulted in
nothing new, and the police investigation was aban-
doned. Roque and Cyr, who had suspended Schrock on
February 7, 1981, determined, allegedly in part on the
basis of additional charges of "patient abuse" that had
been made by nursing assistant Coleen Fisher, that
Schrock should be discharged; and she was, on March 7,
1981.
Cursing at patients and refusing to attend to their
needs are serious matters; and, if proven that they moti-
vated Respondent to discharge Schrock, there would be
little question that the complaint in Case 5-CA-13010
would have to be dismissed. The fact is, though, that
Shrock had testified on January 21, 1981, during the ini-
tial stage of the hearing and had openly averred to her
support of the Union; that Shrock had been for almost 2
years employed by Respondent with only one minor
contain as much information as the person making the report is able
to provide.
(c) Invesigation.--(I) The law enforcement agency shall make a
thorough investigation of the reported abuse and shall attempt to
insure the protection of the victim.
(2) The investigation shall include a determination of the nature,
extent, and cause of the abuse, the identity of the accused, and all
other facts or matters found to be pertinent.
(3) The law enforcement agency shall render a written report of
its findings to the State's attorney, the Secretary of Health and
Mental Hygience, and the administrator of the nursing home not
later than 10 working days after the completion of the investigation.
(d) Immunity from civil liability --Any person, except a person ac-
cused of abuse, who makes a good faith report under this section, or
who participates in an investigation or in a judicial proceeding aris-
ing from a report, is immune from any civil liability for this action.
(e) Signs specifying reporting requirements.-(I) The Department of
Health and Mental Hygiene shall supply to each nursing home signs
specifying the reporting requirements of this section.
(2) The signs shall be posted conspicuously in employee and public
areas of the nursing home
blemish, earning high ratings on her yearly evaluations
from Respondent's supervisors and plaudits from the pa-
tients; and that Respondent's actions were not wholly
consistent with the defense it now raises.
Notwithstanding my finding that Ostendorfe was a sin-
cere and believable witness, I have substantial difficulty
in understanding why Respondent proceeded as it did,
particularly processing this matter under the Maryland
statute, which defines "patient abuse" as a matter seem-
ingly of much greater physical or mental mistreatment
than that which can be attributed to Seifarth's charge. In
fact, Roque testified that all she knew about the statute
was that a notice had to be posted, and that notice re-
quired only that "physical or mental abuse" be reported
to the police. Her failure to seek advice as to the scope
of the statute-whether what Seifarth charged was
"mental abuse"-and her reliance upon Ostendorfe's sur-
mises, based on a seminar she had attended, seems to be
a glaring omission. One does not normally file charges
with the police, where the treatment of the patient might
become a matter of adverse publicity, particularly where
the statutory scheme results essentially in action against
the Home.3 8 Rather, Respondent's handbook (group I,
rule 1) provides for a warning for "[d]iscourteous, unat-
tentive or unprofessional treatment" or immediate termi-
nation for abuse (group III, rule 5) which, had Roque
been so inclined, might have been utilized instead.
But assuming that Roque's perception was as she testi-
fied-that the charge against Schrock did constitute
"mental abuse"-what transpired next bears directly
upon Respondent's motivation. While the investigation
proceeded, Schrock remained suspended from employ-
ment, not terminated. When the investigation resulted in
the police determination not to prosecute, Roque was
clearly displeased. Instead of letting the matter drop,
Roque pressed for the police's further investigation,
claiming that she was dissatisfied with the superficiality
of the initial phase of police review, and made additional
witnesses available. Only after she thought that the
police once again had determined that no criminal pros-
ecution was warranted, did Roque reach the decision to
terminate Schrock. In the interim, Roque received
charges of serious patient abuse from Fisher on February
7, and no new "facts" had developed from that date; yet
a decision to terminate was made only after the police
abandoned its investigation.
Respondent's delay in taking final action may be ex-
plained only by its desire to use the police investigation
to give it a sound foundation to discharge Schrock. That
was the reason why it prodded the police to pursue the
matter after its initial investigation had ended. The pat-
tern which she followed was the same as when Roque
prompted Jenkins to file criminal charges against Wil-
burn and offered her aid in doing so. When the police
as Despite what the police told Cyr, and what the police understood,
it is probably accurate that the filing of charges did not constitute a
criminal proceeding. No authority has been cited to demonstrate that
mental abuse of a resident is a crime. Rather, the freedom from abuse is a
part of a "patient's bill of rights." art. 43. § 565C(aX7); and a violation of
that right commences a procedure to correct such violation, under penal-
ty of the nursing home's loss of license. Art. 70B.
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation of Schrock did not attain Roque's desired
goal, Roque felt necessary to move on her own.
And, because the investigation ended in failure, Roque
felt compelled to support the discharge with reasons
other than "patient abuse." Thus, in her letter of dis-
charge, Roque stated:
Due to your refusal to cooperate with the police,
they felt unable to continue with their investigation
and recommended that we handle it internally.
Since you have refused to cooperate with us and
the police, I have decided, after much deliberation
and consultation with State Official, Our Attorney,
and TLSA Executive, to terminate you.
These alleged reasons are pretextual. One was based on
Schrock's failure to appear for an interview by the
police; but Cyr was specifically advised by the investi-
gating police officer that an accused in a criminal investi-
gation has the right to remain silent. Thus, Schrock's re-
fusal to be interviewed was not a reason.3 9 Schrock's as-
serted failure to cooperate with Respondent similarly
lacks merit. Roque conceded that she never asked
Schrock about her alleged behavior and sought to shift
the burden of coming forward to Schrock, whom she
claimed never presented her side of the story. But, be-
cause Cyr had been advised by the police that Respond-
ent's charges were criminal, advice which I infer he
communicated to Roque (Cyr did not testify at the May
hearings), Respondent could not reasonably expect that
Schrock would initiate an interview. I find the reasons
given in the letter unworthy of belief.
So, too, do I find Fisher's testimony. Fisher alleged
that she had, as Schrock's working partner, observed
Schrock's mistreatment and abuse of patients for over 2
years-the conduct ranging from cursing and calling pa-
tients "elephants" and "dead," to slamming patients into
sides of beds, hitting one on the head with a hairbrush
and spraying perfume into her face, and giving a patient
an unprescribed laxative. It was only after Seifarth com-
plained, however, that Fisher brought forth her history
of Schrock's abuses, feeling that Seifarth's action was a
catharsis which permitted the truth to finally be told.40
However, it was also at that time that Fisher, who was
suspended with Schrock, a suspension (paid) which
lasted only a day, had recently been issued two warnings
as a result, she thought, of Schrock's complaints that
Fisher was not giving patients adequate care. A third
violation of Respondent's rules would have subjected
Fisher to discharge. Thus, when she was suspended, her
job was in grave jeopardy and that is the precise moment
3s Actually, Schrock refused to be questioned, on advice of counsel,
unless such an interview was required by the police. Such request was
never made.
40 Fisher stated that she complained once, to LPN Marla Shockey and
RN King, that Schrock was not bathing patients as she should. However,
she made no mention of patient abuse, a subject more likely to be the
subject of a complaint. Fisher also testified that, because of Schrock's
persistent abuse of patients, she requested that another partner be as-
signed to her. Her request was granted. Yet, in late 1980, when she was
reassigned to be Schrock's partner, she made no complaint. I find her tes-
timony most unlikely and credit Schrock's testimony that Fisher request-
ed that she be reassigned as Schrock's partner.
she recalled the past 2 years' excesses of Schrock's be-
havior.
Apparently, Fisher's statement and testimony have
been personally beneficial. Whereas Shirley Yutze was
disciplined for not telling Roque about the bickering be-
tween Wilburn and Jenkins which led up to the incident
in the parking lot, Fisher was not disciplined (her third
warning) for not reporting all of Schrock's activities.
Roque stated at the hearing that she simply had not had
time to consider the matter, but it was still pending. I do
not believe her.
Further, in observing Fisher's demeanor, I found her
to be entirely embittered against Shrock; and, finally, I
found her testimony of Schrock's patient care to be ex-
pansive, inflated, and sometimes imaginative and contra-
dictory. In particular, it may be merely coincidental, but
I find it significant that all of the alleged instances in-
volved patients who were incompetent or deceased, so
that no rebuttal could be heard from those involved. One
of Respondent's witnesses, Norma Lee McKenzie, al-
though critical of Schrock's rough handling of and
speech to patients,41 preferring herself to a lower keyed,
more gentle approach, witnessed none of the extraordi-
nary events to which Fisher testified. I cannot imagine
that, on only Fridays, when McKenzie regularly worked
with Schrock, did Schrock cease the continuous and
consistent flagrant activities of which she was accused
by Fisher. I also find it wholly improbabe that Shrock
should have exhibited misconduct solely to incompetents
for 2 years, yet suddenly turn her attention on February
4 to Seifarth, who (all agree) was a competent and aware
resident. Fisher's explanation for not coming forward
with her complaints is lame, indeed. First, she stated that
her complaint to Shockey and King was disregarded.
Then, she averred that she felt that the pressure of the
union organizing campaign-with her opposed to the
Union and many others of her coworkers being in favor
of the Union-caused her to avoid further friction. Yet,
the friction was already present by reason of complaints
against her; and, assuming that friction was the reason
for Fisher's abstinence, her failure to complain in early
1979, when there was no union campaign, was wholly
unexplained.
Schrock's evaluations were consistently high, although
it is certainly possible that some of her misdoings were
hidden from the view of her supervisors. However, that
possibility wanes in light of Schrock's recent award by
patients as the best nursing assistant, with her name and
picture exhibited prominently in the patients' newsletter.
And, in a sense, discussion of whatever problems there
were in Schrock's care of Seifarth was initiated by
Schrock, who, assigned to Seifarth's care only on about
January 6, 1981, spoke twice to her RN about the prob-
lems she was having and asked about the possibility of
switching patients because she could not comply with
what she thought were Seifarth's unwarranted de-
' McKenzie testified only to support Respondent's position at the
hearing. There is no indication that her appraisal was relied on by Re-
spondent in making its decision to suspend or discharge Schrock.
668
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
mands.42 In other words, Schrock cared about her inter-
action with her wards, an attitude which differs marked-
ly from the manner in which she was generally por-
trayed by Respondent at the hearing. 43
I do not belittle or downgrade Seifarth's allegations,
nor do I find that she inaccurately described what
Schrock did.4 4 But, in considering the record as a
whole, I must similarly be cognizant of the facts leading
to the discharge of Wilburn, and particularly the allega-
tions made by resident Abby McMullen, who accused
Cyr of attempting to make her spy on Wilburn, and Re-
spondent's precipitate brushing away of that accusation.
That is to be contrasted with Respondent's immediate
concurrence with Seifarth's charges. Seifarth's later posi-
tion that she did not desire to get anybody in trouble (ar-
guably neither a reaffirmation nor a disavowal of what
she had earlier charged) could not assuage Roque.
The gist of an 8(a)(3) complaint is motivation. I am not
persuaded that Schrock, who had testified against Re-
spondent (and Roque personally) shortly before Febru-
ary 4, 1981, was disciplined without regard to that testi-
mony or her avowed union preference.4 5 Clearly, dispar-
ity has been shown. Yutze was disciplined; Fisher was
not. Schrock was; Keller was not. McMullen was not be-
lieved, when it was helpful to support Wilburn's dis-
charge; Seifarth was believed, when it was helpful to
support Schrock's discharge.4 6 During Roque's inter-
view of Schrock on February 7, Schrock questioned her
indefinite suspension, citing a 3-day suspension of em-
ployee Kate Preston, who pushed a patient's wheelchair
against a wall and called the patient a "miserable son of
a bitch." Roque brushed aside those comments as none
of Schrock's business, but it is surely the business of the
Board to determine whether Schrock was treated differ-
ently and to make inferences from the differing treat-
ment. So, too, the shifting of reasons for discipline has
4" Most of the witnesses for the General Counsel and Respondent
agreed that Seifarth was a "demanding" patient, desiring that all attention
be directed first to her, to the exclusion of other residents-although
there was some difference of opinion as to the degree of her demands.
43 RN Belinda Cosgrove, whom I found credible, testified that
Schrock was a capable nursing assistant.
"4 Rather, I find that there was some interaction between Schrock and
Seifarth the morning of February 4, prompting Schrock's telephone call
to Cosgrove that evening, in which Schrock again said there were some
problems in her care of Seifarth which she wanted to discuss the follow-
ing morning at work. However, that conversation played no part in Re-
spondent's decision to suspend and ultimately terminate Schrock (nor did
Cosgrove play any role in that decision).
4" Respondent argues that on February 7, Schrock never denied to
Roque that she had cursed at Seifarth. In a sense, that is true. According
to Schrock's testimony, when Roque accused her of cursing, her only
reply was to ask what curse words she was supposed to have used, to
which Roque did not reply. Thus, there was really no accusation which
Schrock had an opportunity to deny. According to Roque's testimony of
the same interview, Roque never even mentioned that Shrock was ac-
cused of cursing, which, of course, would have given no cause to deny
the use of obscenities. I accept Schrock's narration, finding implicit in her
question to Roque a denial of wrongdoing.
4" Respondent contends that the mental condition of Seifarth and
McMullen justified its decision to rely or not on various statements they
made. Thus, whereas Seifarth was coherent, McMullen "internalized" all
events around her. General Counsel's witnesses testified, however, that
McMullen was coherent and able to describe accurately what was going
on. There was sufficient circumstantial evidence presented to support the
conclusion that Cyr desired to talk to her and that her words should not
have been dismissed with impunity.
often been utilized to support an inference of illegal
motive, and, here, Respondent's counsel could not quite
make up his mind whether "non-cooperation" with the
police and Respondent was or was not a reason; and I
find that it has no substance. Finally, I note that Roque
wrote to the Maryland Division of Licensing and Certifi-
cation and complained of the inadequacy of the police
investigation; notified it of the termination of Schrock,
Schrock's filing of an unfair labor practice charge, the
investigation by the Board's Regional Office of that
charge, and Roque's feeling that a hearing would be
held; and noted that "[S]trange things are going on," in-
cluding chemical burns on patients' buttocks, cursing,
and maltreatment of patients, and "a sprinkler head
knocked off causing two of three dryers to blow out."
Roque further stated:
Please forgive me for rambling on. I feel we have
a good facility [with] the majority of our staff con-
cerned, caring people, but when our residents start
to be used as pawns I can no longer tolerate itl . . .
[Emphasis supplied.]
In context, Roque's complaint was that the residents
were being used to further the cause of the Union and
that it was union activity that resulted in "[S]trange
things." The specter of the Union's malevolence, dispar-
ate treatment, shift of reasons, and hasty reliance on
rather incredible accusations persuade me that, but for
Schrock's known union activities and her testimony on
January 21, 1981, the events of February 4 would never
have steamrolled in the way they did; and that had
Schrock not been a union supporter and not testified on
January 21, the charges made by Seifarth would have
been handled entirely differently, at the very least with a
degree of delicacy and fairness as was exhibited to
Keller. 4 7 I conclude that Respondent, by suspending
Schrock on February 7 and discharging her on March 7,
1981, has violated Section 8(a)(3), (4), and (1) of the Act.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
'? In so concluding here, as well as in my conclusions regarding the
other discriminatees, I have been cognizant of the principles set forth in
Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 (1980),
which has been cited by both General Counsel and Respondent in their
briefs. I conclude that General Counsel Counsel has, in each instance,
made "a prima facie showing sufficient to support the inference that pro-
tected conduct was 'a motivating factor' in the employer's decision," and
Respondent has not demonstrated that its discharge of any of the discri-
minatees would have taken place in the absence of the protected conduct.
American Tool & Engineering Ca. Inc, 257 NLRB 608, fn. 4 (1981).
669
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, post an appropriate
notice, and take certain affirmative action designed to ef-
fectuate the purposes and policies of the Act. Because I
have found that Respondent discharged Ronald Hart-
man, Eleanor Bennett, Elizabeth Loar Beckman, and
Sally Wilburn, and suspended and discharged Arlene
Schrock in violation of the Act, I shall recommend that
Respondent be ordered to reinstate them to their former
positions, or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges,48 and to make
them whole for any loss of earnings they may have suf-
fered by reason of their discharges, by paying them a
sum of money equal to that which they normally would
have earned absent the discharges and suspension, less
earnings during such period, to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). 4 9
Having found that Respondent unlawfully issued
warnings to Hartman, Bennett, and Wilburn, I shall rec-
ommend that Respondent be required to revoke, rescind,
and expunge the same from its employment and person-
nel records. Schrock testified that, when she was inter-
viewed by Roque on February 7, 1981, she found in her
personnel files a warning that had been issued to her
more than a year before. According to Respondent's
handbook, such a warning is stale and is not to be con-
sidered in future discipline of employees. Because Re-
spondent has exhibited union animus and particularly di-
rected its unlawful activities against the discriminatees
herein, I shall recommend the same relief with regard to
all warnings contained in the files of these discriminatees,
even though some warnings were not discriminatorily
motivated, because the warnings are now stale.
Having found that Respondent's rule prohibiting solici-
tation and posting of literature is overly broad, I shall
recommend that it cease giving effect to such rule and
rescind it insofar as it interferes with employees' Section
7 rights. Eastern Maine Medical Center, 253 NLRB 1230
(1980).
General Counsel requests that Schrock be reimbursed
her attorneys' fees, if any, incurred as a result of the
police investigation and that Respondent should be or-
dered to notify the Maryland Division of Licensing and
Certification and any other state, municipal, or local
agency contacted by Respondent, advising that the al-
4' I raised, sua sponte, a question as to whether Hartman should be en-
titled to reinstatement if I found that Respondent had committed an
unfair labor practice in discharging him. In his application for employ-
ment with Respondent, Hartman was not wholly candid about his reasons
for leaving his prior employer. It appears, however, that the accusations
which had been alleged against him by his prior employer were fully
known by certain of Respondent's supervisors (as Respondent concedes
in its brief) and that Respondent always obtained a reference from the
prior employer before hiring a new employee. It thus appears that there
is no justification for not affording Hartman the complete relief to which
he would otherwise be entitled.
49 See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962).
leged patient abuse charge has been rescinded and that
Schrock has been reinstated, as set forth above. These
remedies are fully warranted, especially considering the
harm that the charges might otherwise cause to Schrock,
should she ever seek other employment. The United
Credit Bureau of America, Inc., 242 NLRB 921, 927
(1979), enfd. 643 F.2d 1017 (4th Cir. 1981); Liberty
Mutual Insurance Co., 235 NLRB 1387 (1978), enforce-
ment denied on other grounds 592 F.2d 595 (Ist Cir.
1979).
Because Respondent has discriminatorily discharged
five employees because of their union activities and en-
gaged in numerous unfair labor practices which directly
impinge upon the exercise of employees' Section 7 rights,
I conclude that its violations are egregious and will rec-
ommend the issuance of a broad cease-and-desist order.
Hickmott Foods, Inc., 242 NLRB 1357 (1979).
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 50
The Respondent, Tressler Lutheran Home for Chil-
dren t/a Frostburg Village of Allegany County Nursing
Home, Frostburg, Maryland, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and sympathies and the union activities and
sympathies of other employees.
(b) Instructing its employees to remove union pins
from their uniforms.
(c) Creating an impression among its employees of sur-
veillance of their activities on behalf of the Union.
(d) Promulgating, maintaining, and enforcing any rule
or regulation prohibiting its employees from soliciting on
behalf of any labor organization on Respondent's prem-
ises areas other than immediate patient care areas, during
employees' nonworking time, or prohibiting without Re-
spondent's written authorization the distribution of union
literature in nonworking areas during employees' non-
working time, and reprimanding or warning employees
for violation thereof.
(e) Directing its employees not to talk about the Union
in its facility or on company time.
(f) Promising its employees greater wage increases
should they not select the Union as their collective-bar-
gaining representative.
(g) Threatening its employees with the loss of existing
benefits and that Respondent would start from zero in
bargaining with the Union should they select the Union
as their collective-bargaining representative.
(h) Threatening its employees with discharge and un-
specified reprisals for engaging in union activities.
50 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
670
FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME
(i) Discharging, suspending, or otherwise disciplining
its employees because of their membership in, assistance
to, or activities on behalf of the Union.
(j) Discharging, suspending, or otherwise disciplining
its employees because they have testified in a proceeding
under the Act.
(k) Filing charges against its employees of mental or
physical abuse with any police department or with the
Maryland Division of Licensing and Certification where
it has no reasonable cause to believe that any abuse has
been committed and where such charges are filed solely
because its employees are members of, are assisting, or
are active on behalf of the Union, or have testified in a
proceeding under the Act.
(1) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Ronald Hartman, Eleanor Bennett, Elizabeth
Loar Beckman, Sally Wilburn, and Arlene Schrock im-
mediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of earnings that they may have suffered by
reason of Respondent's discrimination against them, in
the manner set forth in "The Remedy" section of this
Decision.
(b) Reimburse Arlene Schrock for all legal expenses
incurred in her defense of the charges of physical and
mental abuse filed by Respondent with the Frostburg
Police Department and the Maryland Division of Licens-
ing and Certification.
(c) Notify, in writing, the Maryland Division of Li-
censing and Certification, the Frostburg Police Depart-
ment, and any other state, municipal, or local agency
contacted in connection with its charges against Arlene
Schrock, that all references to alleged patient abuse by
her are rescinded and that she has been reinstated to her
former position of employment, with full rights and
privileges, pursuant to an Order of the National Labor
Reiations Board; and send copies of said notices to
Schrock.
(d) Revoke, rescind, and expunge from its records all
written warnings and suspensions issued to Ronald Hart-
man, Eleanor Bennett, Elizabeth Loar Beckman, Sally
Wilburn, and Arlene Schrock.
(e) Cease giving effect to and rescind its rule prohibit-
ing solicitation, distribution or posting of material or no-
tices without prior written authorization from its admin-
istrator insofar as it applies to the exercise of employees'
rights under Section 7 of the Act in areas of its facility
other than those involving immediate patient care and in-
sofar as it prohibits distribution of union literature during
employees' nonworking time in areas other than immedi-
ate patient care areas of its facility.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Post at its facility in Frostburg, Maryland, copies
of the attached notice marked "Appendix."5 1 Copies of
said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(h) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint is Case 5-
CA-11890 be dismissed insofar as it alleges violations of
the Act not specifically found herein.
a1 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
671