Westbrook Park Nursing Home

National Labor Relations Board - Board Decisions

Aug 15, 1975

219 N.L.R.B. 1153 (N.L.R.B. 1975)

WESTBROOK PARK NURSING HOME 1153
Westbrook Park Nursing Home and Retail Clerks In-
ternational Association , Local 698, AFL-CIO. Case
8-CA-8669
August 15, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On April 28, 1975, Administrative Law Judge Sid-
ney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Westbrook Park Nursing
Home, Canton, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings.
2 Having adopted the Administrative Law Judge 's conclusion that the
head housekeeper , Mary Bowers , was a supervisor within the meaning of the
Act, we find it unnecessary to decide whether , even if Bowers was not a
supervisor , Respondent nevertheless would be responsible for her actions
under agency principles.
interrogated an employee concerning union activities and
sympathies, told an employee to go to a union meeting
with another employee and report back to Respondent,
threatened an employee with discharge if she continued to
engage in union activities, all in violation of Section 8(a)(1)
of the Act, and discharged Barbara Murphy, Judith Ann
Lehmiller, and Georgiana Van Camp, in violation of Sec-
tion 8(a)(1) and (3) of the Act.
Respondent's answer denies the commission of the al-
leged unfair labor practices, but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board (Respondent, in the
operation of a proprietary nursing home, has an annual
income in excess of $100,000 and annually receives prod-
ucts valued in excess of $5,000 in interstate commerce),
and to support a finding that the Union is a labor organiza-
tion within the meaning of the Act.
Upon the entire record in this matter,' from observation
of the witnesses and their demeanor, and after due consid-
eration of the briefs of General Counsel and the Respon-
dent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE SUPERVISORY ISSUE
Mary Bowers, stated by General Counsel to have been
Respondent's head housekeeper, is alleged in the com-
plaint to have been an agent and supervisor of Respondent
within the meaning of the Act. The complaint also alleged
that Bowers engaged in certain activities by which Respon-
dent violated the Act. The answer originally denied that
Bowers and R. T. Rodriguez, the administrator of the
nursing home, were agents of Respondent or supervisors
within the meaning of the Act. At the outset of the hearing,
however, Respondent amended its answer to admit that
Bowers and, Rodriguez were agents and supervisors of Re-
spondent.2 After witnesses for the General Counsel had
given testimony concerning Bowers, which if credited,
might support findings of interference with employee rights
under the Act, knowledge of union activities on the part of
the three discharged employees, and illegal motivation with
respect to those discharges, Respondent's counsel, on the
second day of the hearing, toward the end of General
Counsel's case, stated that Bowers was now available to
him, and he desired to be released from his stipulation of
the previous day with respect to Bowers. This was granted
to the extent that Respondent might adduce evidence in its
defense contravening the allegation that Bowers was an
agent or supervisor, and that the General Counsel might
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was heard at Canton, Ohio, on January 28, 29, and
February 27, 1975, upon a complaint issued on November
26, 1974, based on a charge filed by the above-named
Charging Party (herein "the Union") on October 15, 1974.
The complaint alleges that the above-named Respondent
' Respondent's request and the order granting a continuance of the hear-
ing from February 10 to February 27, 1975, not previously included in the
record , are hereby received as AU Exhs. I and 2. By letter dated April 4,
1975, 1 submitted a proposal to correct the record, to which no response has
been received . I hereby order that the record be corrected in accordance
with that proposal, which together with the letter is received as AU Exh. 3.
2 In the case of Bowers , counsel for Respondent stated that he did this
reluctantly, because Bowers was not available to him, and he had no way of
proving that she was not a supervisor . However, Rodriguez, who had been
Respondent's chief operating officer during Bower 's tenure with the nursing
home, was present and available to counsel.
219 NLRB No. 188
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reply, in rebuttal , with evidence supporting this allegation
of the complaint.
The evidence in the record with respect to Bowers' su-
pervisory authority presents a difficult problem. She was
the first housekeeper employed when the nursing home
here involved was opened in the spring of 1973, and was
employed until late October 1974. (All dates hereinafter in
1974, unless otherwise noted .) She was replaced thereafter
by Thelma Kehner, who, Rodriguez testified, had the same
duties and authority that Bowers previously possessed. In a
pretrial affidavit, secured by an agent of the General
Counsel, in the presence of Respondent's counsel, Rodri-
guez listed a number of persons , including Kehner, as "our
supervisory staff ." Kehner was listed as "housekeeping su-
pervisor." All of the others thus listed in the affidavit as
part of "our supervisory staff" are clearly supervisors with-
in the meaning of the Act .3
Bowers was an hourly paid employee, receiving during
times relevant to this matter a rate substantially higher
than the other housekeepers . As the nursing home in-
creased its staff, Bowers began to play a role in the process
of hiring additional housekeepers at the request of manage-
ment. In the period material here, when housekeeper appli-
cants came to the home , Bowers would be paged to come
to the lobby to speak with the applicant and assist her in
filling out her application for the position. If there were
immediate vacancies, the applicant would be taken to see
Rodriguez. Otherwise, Bowers would tell the applicant that
she would be called when there was need for her, and take
the application in to Rodriguez.
When an applicant for a housekeeping job was inter-
viewed by Rodriguez, at the end of that interview, Rodri-
guez would have Bowers paged to come to his office. He
would introduce Bowers to the applicant and request Bow-
ers to show the applicant around the home and explain the
duties and responsibilities of the housekeepers. He would
do the same as to applicants with whom Bowers had al-
ready spoken. After Bowers had shown the applicant
around the home, explained the required duties, and an-
swered the applicant's questions (Bowers states she could
not talk to them about wages), Bowers would take the pros-
pective employee back to Rodriguez.
Both Rodriguez and Bowers , in response to direct, spe-
cific questions, asserted that Bowers did not recommend
hire or discharge of employees. The record raises some
questions concerning this assertion , particularly with re-
spect to the hire of housekeepers . Thus, Bowers admitted
that when she brought a new application for employment,
Rodriguez would ask her what she thought of the appli-
cant, based on the information in the application. She stat-
ed that Rodriguez would ask her opinion of applicants who
came in for job interviews, that he would ask "if I thought
they were the type that wanted to work, or about their
appearance and past employment record. If I thought it
was worth hiring [the particular individual]." Bowers as-
serted that "[b]y looking at the application or looking at
3 Rodriguez testified at the hearing that Bowers was a "working supervi-
the person [,] [y]ou would know whether or not they can do
the work." Bowers also testified that after she had shown
prospective employees around, Rodriguez would ask her
what she thought of the applicant. She says that she would
answer, "Yes, she seems all right." She asserts that she nev-
er had occasion to tell Rodriguez that an applicant was not
satisfactory. Those who still wanted to work were usually
hired. The home had a considerable turnover in house-
keepers .4 Rodriguez, on his part, stated that he would only
ask Bowers' opinion with respect to the appearance of the
job applicants, because he felt that was a feminine matter.
I was not much impressed with the candor of either Ro-
driguez or Bowers on the subject of her duties, responsibili-
ties, and authority. With respect to the instructions, direc-
tion, or oversight of the work of the housekeeping
department, Bowers sought to give the impression that the
work was arranged by agreement among the housekeepers,
without supervision, and that each oversaw the work of the
others, without distinction. At other places, Bowers agreed
that she worked all over the home, "seeing that the house-
keeping was done," that "[s]ometimes, I would have to
check [the new girls], yes, to see they were keeping the
rooms up the way they should be, certainly," and where a
girl had failed to do her chores, "if I would find it, I would
call a girl to please redo her duties and to try to remember
to keep the supplies where they belonged." Even with re-
spect to who decided which rooms were to be cleaned in
which order, a subject which Bowers adamantly insisted
was decided only by agreement among the employees,
without supervisory intervention, Bowers, when asked if
she ever told housekeepers what particular rooms to clean,
significantly answered, "Not particularly, I just let them
choose the wings they wanted to and that was it." (Empha-
sis supplied.)
It is admitted that Bowers would report such employee
derelictions as she observed to Rodriguez and that Rodri-
guez would instruct Bowers to reprimand the employee in-
volved, which Bowers would do. Nurses at the home who
would have complaints concerning housekeepers would
bring them to Bowers. Bowers testified that she went to the
housekeeper complained of and instructed her to change
her activities to conform to the nurses' complaint. There is
no indication that Bowers had to seek prior approval of
anyone to take this action, and I find that she did not need
such approval. On occasion, management of the nursing
home would tell Bowers that something needed to be done,
and she states that she would do it herself, or "I would see
that it was done."
Despite some vague and uncertain testimony on Bowers'
part, it is clear that the housekeepers understood that when
they desired to phone in that they were to be sick or other-
Notwithstanding the import of the testimony set forth , Bowers neverthe-
less also hedged when asked if she formed an opinion with respect to these
applicants . Later she agreed that Rodriguez would ask her opinion of the
applicants , but when asked if he "asked you whether you felt they should be
hired," she responded, "No, not like that,".that Rodriguez would just tell
her to show the applicant around, tell them what they wanted to know, and
bung them back to Rodriguez.
3 Rodriguez testified flatly that Bowers had been instructed to take action
sort" spending 100 percent of her time doing the same manual duties as the with respect to certain matters of discipline affecting housekeepers. Bowers,
other housekeepers . This estimate is patently exaggerated and is not cred- on the other hand , testified that she never gave any housekeeper either an
ited. oral or written reprimand . I do not credit Bowers.
WESTBROOK PARK NURSING HOME 1155
wise absent, or when they desired to leave work early, or to
come in when not scheduled, the proper person to contact,
if she was there, was Bowers. However, it is also clear that
she had no authority to take action on those requests on
her own initiative, but had to seek clearance from manage-
ment. Also, although Bowers initially made up the sched-
ules of work for the housekeepers, Rodriguez testified, and
I believe, Bowers had to submit this schedule for manage-
ment approval. There is no indication of management ac-
tion on these schedules. I would doubt that management
had many occasions to change Bowers' schedules .6
Both Rodriguez and Bowers sought to leave the impres-
sion that Bowers played no part in the termination of
housekeepers. In this regard, I note that with respect to one
of the specific reasons assigned for Murphy's discharge-
wandering away from her place of work-this was reported
to Rodriguez by Bowers. There is no indication that Rodri-
guez investigated this report from Bowers before acting
upon it. Murphy recalls no reprimand given to her during
the course of her employment. On the other hand, Murphy
considered Bowers more of a friend than a supervisor, ap-
parently unaware of Bowers' reports to management.
Bowers was the person from the housekeeping depart-
ment who attended regular meetings of department heads
at the nursing home, at which meetings management dis-
cussed matters of concern relating to operation of the
home, conditions of employment, work duties, and the like.
Bowers' testimony indicated that she regularly attended
these meetings. Rodriguez, however, asserted that she at-
tended some of the meetings, not all. There is no evidence
that anyone else attended from the housekeeping depart-
ment.
In her testimony, Bowers referred to herself as a "lead
girl"; Rodriguez called her a "straw boss." I much doubt,
on the basis of this record, if either term was used at the
nursing home. From Bowers' description of how she was
introduced to new employees, I would infer that she was
generally referred to as "the housekeeper." Early in the
hearing, Rodriguez readily accepted General Counsel's de-
scription of Bowers as the "Head Housekeeper."
These facts reveal a front line supervisor, but unques-
tionably a supervisor within the meaning of the Act. On
the evidence set forth, Bowers clearly had authority to re-
sponsibly direct the housekeepers in the performance of
their work and did so. I do not credit Bowers' testimony to
the effect that the housekeepers performed without any im-
mediate day-to-day supervision. Aside from Bowers the
record reveals no one who performed this function. Bowers
reported directly to Esber, who was an assistant adminis-
trator of the home, with responsibility over several depart-
ments. There is no evidence that he checked on the house-
keepers in their daily activities.
I further find that Bowers made responsible and effec-
tive recommendations to higher management with respect
to hire, discipline, and discharge of housekeepers. It strains
6 As noted hereinafter, on one occasion Barbara Murphy advised Rodri-
guez that she would not return to work for Respondent unless she could get
Bowers to readjust her schedule. Murphy then spoke with Bowers about
this. Apparently the schedule was thereafter changed and Murphy returned
to work at the nursing home.
belief that Respondent involved Bowers to such a large
extent in the hiring process, requested her opinion on the
applicants, as the record shows occurred, and then gave no
responsible or effective weight to what she said. It is mani-
fest, on this record, that Bowers was expected to and did
report employee delinquencies to Rodriguez, and that he
acted on them without any further investigation. Thus, Ro-
driguez instructed Bowers to reprimand employees based
solely (so far as this record shows) on Bowers ' reports as to
the employees, and Rodriguez accepted a report of Bowers,
without further investigation, as a basis for discharging
Murphy. These activities of Bowers clearly had the force
and effect of recommendations, and were acted on as such,
regardless of the terminology in which Bowers couched her
reports.
The record is further convincing that during her employ-
ment Respondent considered Bowers as a supervisor and
treated her as the head of a separate department in the
nursing home.
On the basis of the above, and the record in this case, I
find that Mary Bowers, during the times material to this
case, had authority, in the interest of Respondent, using
independent judgment, to responsibly direct employees,
and to effectively recommend the hire, discipline, or dis-
charge of employees, and was thus a supervisor within the
meaning of Section 2(11) of the Act.
In any event, even if it were found that Bowers were not
a supervisor, since Respondent placed Bowers in a position
in which the employees could justifiably believe that she
spoke on behalf of Respondent in respect to their condi-
tions of employment, Respondent may be fairly held re-
sponsible for Bowers' acts within the ambit of her apparent
authority. See, e .g., Betts Baking Co. v. N.L.R.B., 380 F.2d
199 (C.A. 10, 1967); Broyhill Company, 210 NLRB 288
(1974).
11. ALLEGED UNFAIR LABOR PRACTICES
A. Involving Barbara Murphy
1. The facts
Murphy was employed by Respondent in December
1973 as a housekeeper. During her employment she re-
ceived five pay raises, the last being an increase of 10 cents
an hour on September 9. Murphy was discharged on Octo-
ber 4. On one occasion during this period, in May 1974,
Murphy quit her employment with Respondent because of
a conflict with another employee. Murphy states that after
a few days Rodriguez called her and requested her to come
back, and that she said she was willing to return if she
could speak to Bowers and get her to change Murphy's
schedule so that she would not have to work with the other
employee. Bowers was successful in getting the schedule
changed and Murphy returned. Rodriguez denies that he
asked Murphy to return, but states that he called her, after
she had been absent for "five-six-seven days, perhaps a
week" to advise that her failure to "report to work on three
consecutive working days" resulted in automatic termina-
tion. Rodriguez asserts that Murphy asked for another
chance, to which he acceded, and she then returned.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murphy's version appears the more logical. There would
appear no reason in the circumstances for Rodriguez to
initiate the contract at all unless Murphy had been a satis-
factory employee who Rodriguez wanted to keep. Thus, at
the time of the call, according to Rodriguez, Murphy had
already been terminated , possibly for about 4 days. If she
had been unsatisfactory, it is to be assumed he would not
have bothered to contact her at all. Since he did, it is prob-
able he sought to have Murphy return. I credit Murphy.
About September 18, Murphy showed Bowers and other
housekeepers a clipping she had from a local paper con-
cerning union organization at another nursing home. Mur-
phy told Bowers that she was going to call the Union, to
which Bowers replied that Murphy "better not." Murphy
did contact the Union, met with a union representative,
and secured about 50 union cards. She signed one herself.
Thereafter, she tried to get other employees to execute
these cards and did succeed in obtaining about 15 signed
cards from employees of the nursing home.
During the latter part of September or the first of Octo-
ber, Murphy states that she had one or two conversations
with Bowers concerning their union activities. In these con-
versations, according to Murphy, Bowers told her, while
Murphy was at the nursing home at work, that "Mr. Rodri-
guez found out who was trying to start the union at West-
brook, and that it was me. She said that I'd better watch it
for I would get fired."7 Murphy named two other house-
keepers as present when this statement was made. One of
these was Kehner, who later was assigned to take over
Bowers' position. Bowers' testimony is considered herein-
after. Kehner did not testify.
On October 4, Murphy received a telegram at home
signed by Rodriguez, stating: "Notice of Termination of
Employment Effective October 4 1974 Letter of Explana-
tion in Mail." The letter dated the same day, addressed to
Murphy from Rodriguez, states:
Subject: Letter of Termination
Due to constant absenteeism and pattern setting of
absenteeism before and after scheduled days off, and
due to repeated wandering away from your duty as-
signments, and in view of the fact that you had al-
ready been given one chance after staying off the job
with no excuse , and no call-offs, I believe it is neces-
sary to bring your employment with Westbrook Park
Nursing Home to an immediate termination, effective
this date, October 4, 1974.
Murphy, on the following day, October 5, called Bowers
at home in the evening, advising Bowers that she had re-
ceived a telegram stating that she was discharged. Bowers
told Murphy that she already knew that. Murphy asked
Bowers what had happened, to which Bowers replied that
"on the morning of October 4, Mr. Rodriguez had called
her in his office and got out all of my work records and had
7 At other places , Murphy stated , "[S]he just told me to cool it , because
the week before Rodriguez had [said] something to her about the union, and
she told me that he knew who was starting the union and it was me," and.
"She told me at one time that if I didn 't cool it with the Union , I was going
to get discharged ." It was indicated that this was on the telephone, at a
different time than the statement set forth above in the text.
gone over them with her; that any days that I was off he
noted and asked her why I was off and who I reported off
to and so on. She told me that she gave him satisfactory
explanations for all that she could remember." About a
week later, Murphy had one further telephone conversa-
tion with Bowers, in which she remembers Bowers stating
that she was going to quit her employment with Respon-
dent, but nothing else.
Bowers' testimony concerning these events was as fol-
lows: She denied telling Murphy, "You had better not act
on behalf of the union or you will get fired"; she did not
remember telling Murphy that "she ought to cool it"; when
asked if she told Murphy on the telephone that Murphy
"hadn't better talk about the union with regard to starting
it," or anything to that effect, Bowers answered that she
"couldn't remember that far back"; she further states that
she doesn't remember whether she "ever [told Murphy]
that Mr. Rodriguez knew who was starting the union," but
denied telling Murphy that Rodriguez and she had dis-
cussed Murphy's union activities. Bowers asserted that the
only conversations she had with Murphy concerning the
Union related to Murphy's attempts to get Bowers to sign
up with the Union, and the only thing she could recall
saying to Murphy about the Union was that she did not
want to be a member . Bowers denied that she was consult-
ed about Murphy's discharge, or that Rodriguez asked her
to write statements concerning Murphy before or after
Murphy's discharge, or that she told Murphy in a tele-
phone conversation "that Mr. Rodriguez tried to get [Bow-
ers] to sign a false statement about her."8 Insofar as there is
a conflict between the testimony of Murphy and Bowers,
as set forth above, I credit Murphy. Aside from my doubts
concerning Bowers' credibility generally, Bowers exhibited
a rather selective lack of memory about the events in ques-
tion . She could not remember if she told Murphy to "cool
it," and when asked if she warned Murphy against talking
about the Union, asserted she could not remember "that
far back." Though she denied telling Murphy that she had
discussed Murphy's union activities with Rodriguez, Bow-
ers could not remember whether she told Murphy that Ro-
driguez knew who "was starting the union." In particular,
Bowers' testimony to the effect that she did not inform
Rodriguez of Murphy's union activities is not credited. In
addition to the fact that her knowledge as a supervisor is
fairly attributable to Respondent, it is noted that Bowers
served as a channel of communication to Rodriguez con-
cerning the activities of the employees in her department,
and had previously reported on Murphy.
2. Respondent's reasons for discharging Murphy
Rodriguez testified that after Murphy returned to work
in May 1974, "she fell into some bad habits of extending
her days off again ." He stated that if Murphy was sched-
uled to be off I day, she would stretch it to 2; if scheduled
6 These last two matters apparently relate to testimony by Judith Lehmil-
Ier that at a later time Bowers told her that Rodriguez sought to have Bow-
ers sign false statements to support Respondent's reasons for discharging
Murphy. Lehmiller, and Georgians Van Camp. This will be discussed here-
inafter . For reasons there stated I do not rely on Lehmiller's testimony
concerning this conversation.
WESTBROOK PARK NURSING HOME 1157
off 2 days, she would take 3 days , in each instance calling
in sick the day before or after. Rodriguez testified that this
"happened one thousand percent of the time." Murphy de-
nied that she was absent as claimed . Rodriguez presented
no supportive detail with respect to this assertion. In con-
trast to Respondent' s efforts to bring in a detailed summa-
ry of its records reflecting the tardiness of Van Camp to
justify her discharge, as set forth hereinafter, no records at
all were submitted with respect to Murphy's asserted pat-
tern of absences. Rodriguez' tendency to exaggerate in or-
der to make a point also does not serve to enhance the
reliability of his testimony.
In particular, Rodriguez asserted that when Murphy was
absent on September 23, stating that she had a carbuncle,
he asked Assistant Administrator Edward Esber to investi-
gate , and later received a report from Esber that Murphy
was working at Harrison Medical Center in Canton, on a
5-day-a-week basis .9
In addition, Rodriguez testified that one of his reasons
for discharging Murphy, as set forth in the letter, was that
she had wandered away from her work area, as reported by
Bowers . There is no indication as to when these reports
were received.10
With respect to Murphy's absences in September re-
ferred to by Rodriguez, the following appears from the un-
disputed testimony of Murphy and her husband: Prior to
September 23, Murphy had been suffering from a carbun-
cle which made it difficult for her to walk and thus to
work. On September 22, Murphy told Bowers she would
like permission to take off from work to have this problem
attended to, and desired to leave early that day, as she had
the day before. Bowers sent Murphy to see Assistant Ad-
ministrator Novack. Novack gave Murphy permission to
leave early and to be off the following day, September 23.
Murphy was scheduled to be off on September 24 and 25.
Murphy was unable to secure an appointment with a doc-
tor and stayed at home on September 23 and 24, applying
hot compresses to the sore . Apparently feeling some relief,
Murphy, on September 25 (her scheduled day off) called
Bowers and told her that she (Murphy) had noted from the
schedule that the home was going to be short-handed that
day, and asked if Bowers needed her to come in. Bowers
said she would appreciate that, but she would have to
check with Rodriguez. Bowers later came back and told
Murphy to come in. Murphy did so.
With respect to Murphy's activities at the medical cen-
9 Counsel also sought to show through Rodriguez that Esher had seen a
particular record concerning Murphy at the medical center . General
Counsel's objection to that question was sustained on the basis that Esher
would be the best witness to what he had personally seen . Esher was not
called as a witness . It was not claimed that he was unavailable.
Respondent 's counsel also stated that he had subpenaed Murphy 's employ-
er at the medical center to bring in records . This was not done , possibly
because of the testimony of Murphy and her husband on cross -examination.
10 At one point Rodriguez asserted that he had determined to fire Murphy
the "tail end of September or the first of October ," apparently because of
Murphy's alleged pattern of taking off before and after her scheduled days
off. He said , "I can prove it by my staff," and by the fact that he hired a
number of housekeepers at that time. This was not followed up . There is no
credible proof of a "pattern set" by Murphy as claimed by Rodriguez. I do
not credit Rodriguez ' assertion that he had decided to fire Murphy before
her union activity.
ter: Murphy's husband had been employed to clean the
medical center on a part-time basis for some time. About
September 9, Murphy was also employed to do this same
sort of work on a part-time basis in the evening on Mon-
day, Tuesday, Thursday, Friday, and Saturday. She nor-
mally worked for 3-1/2 hours at the medical center. On
September 23 and 24, Murphy's husband and daughter did
Murphy's work at the medical center for her, and appar-
ently Murphy was paid for this work."
3. Discussion
On the basis of the record as a whole, I am not willing to
accept Rodriguez' unsupported testimony that Murphy
was consistently absent before and after her days off. This
is denied by Murphy. It would have been quite easy for
Respondent to have made a summary from its records to
establish this point, as it did with Van Camp, but Respon-
dent chose not to do so. In the one instance shown by the
record, Murphy did take off the day before her scheduled
days off-for legitimate reason and with permission-but
notably volunteered to come back a day early to assist
when Respondent was short-handed. This does not evi-
dence the attitude of a malingerer.
Respondent's brief contends that Rodriguez had every
right to believe Murphy was deceiving Respondent and
leaving them short-handed to pursue her own ventures,
particularly since she never explained to Respondent prior
to the hearing, that she did not work at the medical center
at the time she reported ill, though she was paid for the
work done. However, the record as a whole does not lead
to the conclusion that Rodriguez had a good-faith belief
that Murphy was malingering. Her return to work on Sep-
tember 25, her scheduled day off, known to Rodriguez,
points to a contrary conclusion. Assuming that he was up-
set at being informed that Murphy apparently had worked
at the medical center during times she was off ill, one
would expect that Rodriguez would have confronted Mur-
phy with this complaint and have given her an opportunity
to explain. Instead, he acted precipitately and discharged
Murphy by telegram while she was at home, thus prevent-
ing the explanation which Respondent now asserts Murphy
should have given.
In fact, Rodriguez was aware of Murphy's union activi-
ties and had given Bowers grounds to conclude that
Murphy's employment was in jeopardy because of this.
(Rodriguez' testimony to the contrary is not credited.) On
receiving an apparent reason for terminating Murphy, Ro-
driguez seized upon it to accomplish a purpose he had al-
ready determined.
Upon the above, and the record as a whole, I find that
Respondent, by discharging Barbara Murphy, discriminat-
ed in regard to hire or tenure of employment of an employ-
ee to discourage membership in a labor organization in
violation of Section 8(aXl) and (3) of the Act. It is further
found that Respondent violated Section 8(a)(l) by Bowers'
11 In its brief, Respondent claims that Murphy also worked at the medical
center on September 21 and 22. 1 am unaware of any record support for
this . The record reference in the brief is to the fact that Murphy left the
nursing home early on those days. She was not asked if her husband or
daughter worked for her on those days.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to Murphy that Respondent was aware of her
union activities and that she would be discharged if she
continued those activities . In coming to this conclusion I
have fully considered Murphy's testimony that she consid-
ered Bowers a friend, that Bowers did not threaten her, or
say she was going to discharge Murphy herself. The plain
threat was that Rodriguez would discharge Murphy. This
was in no way diminished because Murphy thought Bow-
ers a friend . See, e .g., Electrical Fittings Corp., 216 NLRB
No. 179 (1975).
I have also considered Respondent 's argument that Ro-
driguez was unlikely to take such action since he had been
familiar with organizational campaigns at other nursing
homes, and had himself been a union representative for
some years . Experience has shown that union representa-
tives, when placed in management positions are not neces-
sarily restrained from committing unfair labor practices
because of their background . See, e .g., Retail Store Employ-
ees Union, Local 444, etc., 161 NLRB 1358 (1966); Interna-
tional Ladies Garment Workers Union AFL-CIO, 142
NLRB 82 (1963).
B. Involving Judith Ann Lehmiller
1. The facts
Discussion of the facts concerning Lehmiller 's discharge
is much complicated by the nature of Lehmiller's testimo-
ny itself. I have rarely observed a witness under so much
emotional stress during cross -examination . During her first
day on the stand, with agreement of the parties , she was
excused to give her an opportunity to compose herself ov-
ernight . 12 She returned the following day, but continued to
exhibit the same signs of extreme stress . I believe she was
attempting to tell the truth as she recalled it, but, because
of my concern over the reliability of testimony given under
such stress , I have considered Lehmiller 's testimony with
care . It is credited only to the extent consistent with the
findings herein.
Lehmiller was employed by Respondent on July 23,
1974, as a housekeeper. She signed a union card for Mur-
phy on September 21 in the presence of Bowers . She states
that she received a union button at the time and thereafter
wore it at work until she was discharged . There is no evi-
dence that anyone involved with the management of the
nursing home saw this. Other than some discursive com-
ments by Rodriguez, considered hereinafter , there is no ev-
idence that Respondent was displeased with her work. She
received no reprimands , either oral or written.
On September 27, Lehmiller was cleaning a patient's
room, when she became aware that the patient , recently
returned from the hospital , was attempting to walk from
his chair to the bed . Seeing that he was falling, Lehmiller
reached over and grasped him. The only persons around at
the time were two employees standing in or near the door-
way and another patient in the room .13 This effort caused
12 General Counsel stated that Lehmiller had worked all night prior to her
testimony and had had little rest.
13 Respondent's rules forbid housekeepers to give any care or nursing
assistance to the patients . There was no nurse or nurses aide present at the
Lehmiller considerable pain about her ribs, so that she had
difficulty in breathing . This was reported to management
and Assistant Administrator Esber took Lehmiller to the
emergency room of Timkin-Mercy Memorial Hospital (re-
ferred to in Rodriguez ' testimony as TMER), where Leh-
miller was given a brace to wear about her ribs. Esber
brought her back to the nursing home where she secured
her personal property . During this period , Lehmiller was
advised that she was not to return to work without a re-
lease from her doctor. Esber and a clerical in the office also
told her that they would attend to the completion of the
necessary injury report . She then left for her home. At vari-
ous times thereafter , Esber , Bowers, and Rodriguez told
Lehmiller that she could not return to work without a
doctor's release.
Rodriguez indicated in his testimony that he had a writ-
ten or oral report which led him to believe that the incident
occurred in a manner different from that set forth above.
However, no other evidence of this report or reports was
given , and I have therefore credited Lehmiller as to this
incident. As discussed hereinafter , Respondent asserts that
Lehmiller was delinquent in not completing the injury re-
port, but there is no denial of her testimony that Esber and
Respondent 's clerical told her that they would take care of
this for her, or had already done so, and I have credited her
testimony in that respect.
On Sunday , September 29, Rodriguez telephoned Leh-
miller at her home . His account of the call is : "She [a-
]dmitted she was not hurt ... that she had for safety rea-
sons a rib brace that she described as a garter [or]
something that comes around the cage that was supposed
to have been given [her ] by the hospital. And she said she
was not hurting. . . . I asked her if she was coming back to
work. . . . She said she was gonna get in as soon as she
could. [She did not give me any definite date ], but I did tell
her to make sure she came in with a statement as to a
`clean bill of health."' Lehmiller, on her part, recalled that
Rodriguez called about that time , but said she did not re-
call details . She stated that Rodriguez wanted to know
when she was coming back to work (but she later denied
this), and that she told him that she would let him know
"as soon as I Found out." (Lehmiller had not yet contacted
her own doctor to secure a release from him to return to
work.) She states she told Rodriguez he would receive a-
report from the hospital. She denies that she told Rodri-
guez that she felt fine at the time , or that she told him how
she felt . However, Lehmiller also testified at another place
that she felt able to return to work shortly after the acci-
dent , that she wanted to return to work because she needed
the money, but was prevented from doing do because Re-
spondent insisted upon a doctor's release. I am convinced
that the truth lies somewhere in between the two versions
of this telephone conversation . 14 Undoubtedly, she told
Rodriguez that she was anxious to return to work, mini-
mized her injury , and advised that she had not yet seen her
moment of this incident.
141 was struck throughout the record with the vehemence of Rodriguez
testimony in opposition to Lehmiller, marked with a tone of hostility, suspi-
cion , and dislike that did not seem justified by the actual facts . Note, e.g..
his reference to the rib brace that "was supposed to have been given [her] by
the hospital ." (Emphasis supplied.)
WESTBROOK PARK NURSING HOME
doctor. He, on his part, unquestionably asked how she felt,
wanted to know when she would return, advised that she
could not return without a release from her doctor, and
probably encouraged Lehmiller to see her doctor.
On the next day, Lehmiller did call her doctor, but was
unable to get an appointment with him until October 8.
She called the nursing home in the morning, and again in
the afternoon, after her call to the doctor. At that time she
told Assistant Administrator Esber that she had been un-
able to get an appointment with her doctor until October 8,
and would not be able to come back until that time. She
also spoke with Esber on October 8 and advised him that
she would come in on October 9, if she was scheduled.
Esber replied that would be fine.ls
Lehmiller was accompanied to her doctor's office by
Murphy. After Lehmiller received a release from the doc-
tor to return to work on the following day, Murphy sug-
gested that they go to the nursing home where she expected
to meet the union organizer. At the home, Murphy and the
organizer distributed union leaflets in front of the home.
This was about 3 p.m. Lehmiller stood near them, talking
to them. She was wearing a union button. Rodriguez, ac-
companied by Esber , came out of the building and told the
three women to leave or he would call the police. The
union organizer refused to leave. Rodriguez called the po-
lice. Upon their arrival, they informed Rodriguez that the
women had a right to distribute union leaflets so long as
they remained on the sidewalk and did not impede traffic.
The police departed. Not long thereafter, the women left.
The following morning, Lehmiller reported for work.
Rodriguez met her outside the nursing home, stating that
"You got to be kidding." Lehmiller asked, "About what,"
to which Rodriguez replied, "After what you done yester-
day." Lehmiller then asked what she had done, and Rodri-
guez answered, "I'll see you in court." Lehmiller, accompa-
nied by Rodriguez, then went to her locker and secured her
"stuff," after which she left the home.
About October 21, Lehmiller asserted that she had a
lengthy telephone conversation with Bowers about
Lehmiller's discharge, in which Bowers told her that Rodri-
guez had sought to have Bowers, on several occasions, sign
a false statement that Lehmiller was supposed to return to
work on October 3, but did not, and had quit; and that
Respondent had had difficulty in reaching Lehmiller dur-
ing the period of her absences ; that Respondent was hav-
ing trouble finding a reason for Lehmiller's discharge be-
cause she was never late for work, never reported off, but
came to work when scheduled; that Rodriguez wanted
Bowers "to sign about the other employees that worked
underneath her and they were just all false statements he
wanted her to sign" ; and that the employees Bowers men-
tioned were Barbara Murphy and Georgiana Van Camp.
As previously noted, Bowers was asked if she had made
similar statements to Murphy, which she denied. She was
not asked if she had made these statements to Lehmiller, so
15 Lehmdler, after some backing and filling as to whether she called for
Bowers on October 8, testified that she told Esher that she "would go back
to work the following day, if I was scheduled ," to which Esher said that
would be fine , if she had a doctor's release . This was not denied by Esher. 1,
therefore credit Lehmiller.
1159
Lehmiller's testimony as to this conversation is, in effect,
not denied. I have nevertheless considered Lehmiller's tes-
timony in this respect as if it had been denied. Upon con-
sideration of her testimony generally, and the internal fac-
tors in it, I am not inclined to place much reliance on this
account. In the first place, it relies much upon conclu-
sionary language ("false") which I doubt Bowers used.16
Next, I am quite sure that Bowers did not name Van
Camp, a nurses aide, as an employee "that worked under-
neath her," as Lehmiller states. And lastly, Bowers did not
tell Murphy that Rodriguez had sought to have Bowers
sign a false statement about Murphy, when Bowers was
discussing the circumstances of Murphy's discharge with
Murphy. I have no doubt that Bowers spoke with Lehmil-
ler concerning the latter's discharge, and may well have
given Lehmiller to understand that Rodriguez was not sat-
isfied with the basis for her discharge and was seeking to
bolster his reasons for her termination, but I do not have
sufficient confidence in this aspect of Lehmiller's testimo-
ny to find that Bowers told Lehmiller that Rodriguez had
sought to have Bowers sign false statements against Leh-
miller, Murphy, and Van Camp. I do not credit Lehmiller's
testimony concerning the conversation with Bowers.
2. Respondent's reasons for Lehmiller's discharge
Respondent's reasons for Lehmiller's discharge tended
to be complex, diffused, and not always easy to follow. At
one place, when Rodriguez was asked to state his reasons
for discharging Lehmiller, he testified as follows: "She was
probationary number one, but there is a girl that was phys-
ically able to work and insofar as I was concerned, she
showed she was able. When she was to be busy doing [her]
duties, she would be busy elsewhere; well, she walked
around and admitted it to me in the conversation; she did
not show up on her scheduled days of work, which is prov-
en by her appearance on the 8th and frankly I knew at the
point when I saw her then, I knew I was going to fire her
along with Mrs. Murphy." He further stated that
Lehmiller's appearance with the union organizer on Octo-
ber 8 "indirectly" influenced him to discharge her because
she was "supposed to be at work," finally adding, "I knew
I would probably have an unfair labor practice charge,
anybody that lied to me and was supposed to be at work
and then show up there." In addition to these grounds,
Rodriguez asserted most vigorously at the hearing that he
was convinced that Lehmiller had "set him up" for a
workmen's compensation case, that is, apparently had
either contrived or concocted a compensible injury.
Counsel, in Respondent's brief, stated the following rea-
sons for terminating Lehmiller:
1. She was still on probation
2. She violated a very strict nursing home rule not to
handle a patient.
3. Because of previous severe injuries she constituted
a probable Workmen's Compensation case
In discussing this point, Respondent also argues
16 In analyzing the record in this case , I have given little weight generally
to conclusionary and accusatory testimony of witnesses in the absence of
supportive detail or other corroboration
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "She did not advise anyone that she was hurt,"
and did not make out a report on her injuries "al-
though she had ample time to do so."
4. She did not return to work for a period of approxi-
mately two weeks when she could have done so.
5. She failed to attend to her assigned duties.
As to these reasons advanced by Respondent, the record
shows : First, the nursing home does have a policy of con-
sidering new employees probationary for the first 90
days-there is some question whether Lehmiller knew this,
but she had Respondent's rule book and so may be taxed
with knowledge of the rule. Second , Rodriguez agreed that
if Lehmiller's conduct with respect to the patient she assist-
ed was as she described it, her actions in handling the pa-
tient on September 27 would not be subject to criticism,
but that he did not believe her, based on rumors or other
reports he had received . However , no evidence as to these
other reports was offered, and I am not inclined to place
much stock in Rodriguez' unsupported assertion.
Third, with respect to the workmen 's compensation as-
sertions , Lehmiller had been involved in an automobile ac-
cident 2 years previously injuring her ribs, which had
healed . Whether or not she referred to this on her job ap-
plication is not established in the record. However , Bowers
knew about the accident . Although it was stated at one
point in the record that one of Respondent 's reasons for
terminating Lehmiller was her failure to complete a written
report of her injury, Respondent also stated, immediately
preceding, that the failure to make out this report was not
a reason for Lehmiller 's discharge . There is further, no de-
nial of Lehmiller's testimony , which I have credited, that
Esber and Respondent's office clerical told Lehmiller that
it was unnecessary that she make out this written report,
that they would, or already had, made it out. The state-
ment in Respondent 's brief that Lehmiller "did not advise
anyone that she was hurt," seems particularly wide of the
mark on this record . Rodriguez' claim that he thought Leh-
miller was "setting him up " for a workmen 's compensation
claim is assertedly based on his conversation with Lehmil-
ler on September 29, in which he says she told him she was
..not hurting," and the further fact that the x-ray report
from the hospital showed evidence of old rib fractures, but
no new fractures , which Rodriguez says indicated to him
that Lehmiller was not hurt. However, as pointed out to
him, on cross-examination , the hospital report also states
that Lehmiller had "contusions , left wall ." The report also
states that a rib belt was applied, and a painkilling drug
prescribed . I have noted that when General Counsel asked
Rodriguez whether he had read the report thoroughly, he,
rather significantly, replied that : "I got out of it what I
wanted , yes." I have no doubt that Rodriguez was con-
cerned that Lehmiller's accident would result in a
workmen's compensation case . There is no evidence of
which I am aware that Rodriguez was concerned that she
might have other such accidents in the future. For reasons
stated hereinafter, I do not believe that , absent the incident
of October 8, Lehmiller would have been terminated be-
cause of these various asserted workmen 's compensation
complaints.
Next , with respect to the claim that Lehmiller "failed to
attend to her assigned duties," I find no evidence to sup-
port this other than Rodriguez ' discursive statement quoted
above that when Lehmiller was assigned to one place, "she
would be busy elsewhere ," that she "walked around and
admitted it to me in the conversation ." There is no detail
with respect to this in the record. The asserted conversation
is not otherwise identified in the record . There is no denial
of Lehmiller's testimony that she never received any repri-
mands concerning her work, which I have credited. To the
extent that Rodriguez ' testimony asserts that Lehmiller was
delinquent in her work , the testimony is not credited.
Lastly, Respondent asserts that Lehmiller was dis-
charged because she did not come to work for 2 weeks
when she was physically able to do so. More particularly,
Rodriguez testified that she was discharged because she
did not come to work on October 8, when she allegedly
said she would, and therefore "lied" to him . Rodriguez tes-
tified that Assistant Administrator Novack told him on Oc-
tober 7 that Novack had been trying, with some difficulty,
to contact Lehmiller, and had finally succeeded; that No-
vack reported "that she had been to the doctor, but had
not at that point obtained the statement to come back. She
was so instructed to get that statement and report to work.
And that is what he related to me." At this point the fol-
lowing colloquy occurred:
Q. (By Mr. Belkin): Was there any date fixed for
her to report to work?
A. Yes.
Q. What was it?
A. The next day.
Q. That would be what?
A. At this point it was the 8th.
At other places, Rodriguez testified that Lehmiller was
"supposed to be at work" on October 8, and that, based
upon Novack's report she had "lied" to him by not coming
to work, but rather showing up in front of the nursing
home , in the afternoon with the union representative, with-
out any notification that she was not coming in or any
explanation . Early in the hearing , Rodriguez testified that
he had "decided probably on October 7th that Lehmiller
would be terminated ," but that "after she appeared out in
front [of the home] with Murphy and the Retail Clerk[s']
staff representative , on October 8, [he] made up [his] mind
about terminating her." Later Rodriguez testified in expla-
nation that he was motivated to terminate Lehmiller by the
fact that she was "supposed to be at work" on October 8,
but showed up in front of the nursing home , without call-
ing in or giving any explanation for her failure to come to
work. On October 9, the next day, Rodriguez told Lehmil-
ler that she was discharged for what she had done the pre-
vious day.
It would be difficult to place any credence in these asser-
tions by Rodriguez . Contrary to his assertions that the Re-
spondent was without knowledge of what Lehmiller was
doing for 2 weeks, Lehmiller had, in fact, told Assistant
Administrator Esber, on September 30, that she was to see
her doctor on October 8, and could not obtain an earlier
appointment. He did not express disapproval. She again
spoke to Esber on October 8, stating that she would come
in the next day, if scheduled, to which Esber said that
WESTBROOK PARK NURSING HOME
would be satisfactory if Lehmiller had her doctor' s release.
The asserted report from Novack to Rodriguez on October
7 taxes the imagination . According to Rodriguez, Novack
told him that Lehmiller had already seen her doctor, but
did not have a release , and that Lehmiller had been in-
structed (again) that she could not come back without such
release . Nevertheless, Rodriguez testified that the day
"fixed" for Lehmiller's return was October 8. Novack, like
Esber, did not testify. On the basis of the record as a whole,
I do not believe that Lehmiller, on October 7, told Novack
that she had already seen her doctor when that was clearly
not the case . Nor do I believe that Lehmiller promised to
return on October 8, before she had seen her doctor, or
that Novack directed her to do so. Finally, I do not believe,
considering all the factors discussed, that Novack made the
report related by Rodriguez . Esber was the administrator
more directly in charge of the department in which Lehmil-
ler was employed , and he was informed as to the facts of
Lehmiller's situation. Esber was clearly present on October
8, and in Rodriguez ' company . I find it impossible to be-
lieve that Rodriguez did not discuss the matter with Esber,
or that Rodriguez was not informed that Lehmiller, in fact,
saw her doctor on October 8 and had been released to
return to work on October 9.
From the above , it is also manifest that Lehmiller's fail-
ure to return to work during the 2 weeks after her injury
was due to Respondent 's admonition not to return until
she had a doctor's release , and that when she received a
release from her doctor to return on October 9, after so
notifying Assistant Administrator Esber, she did return. I
see no basis for Respondent 's claim that she failed or re-
fused to "return to work for a period of approximately 2
weeks when she could have done so."
3. Discussion
Reduced to its simplest terms, General Counsel 's case on
behalf of Lehmiller rests on the fact that Rodriguez dis-
charged Lehmiller , admittedly , because he saw her on Oc-
tober 8 , in front of the nursing home , in association with
Murphy and the union representative who were distribut-
ing union handbills, an activity to which Rodriguez object-
ed.17 Rodriguez, however, asserts that he was motivated in
terminating Lehmiller, not because of her activity at that
place and time , but because she was "supposed to be at
work," either because it had been "fixed" between Lehmil-
ler and Novack that she return that morning , or because
she was obviously able to come in to work if she were able
to stand outside with Murphy and the union organizer. The
problem with this assertion , however, as has been noted, is
that, in the first instance , there is no probative evidence
that Novack had any conversation with Lehmiller; second-
ly, the asserted report made by Novack to Rodriguez con-
cerning this alleged conversation is inherently incredible;
and, lastly, there is affirmative evidence from Lehmiller
that she had notified Assistant Administrator Esber that
she had been released by her doctor to return to work on
October 9 , to which Esber assented . Esber was not called
17 At one point, Rodriguez stated that Lehmiller was also distributing
leaflets, at another that she was not. In the circumstances, it is clear that she
was associated with Murphy and the Union in their effort
1161
to testify, so there is no denial of Lehmiller's testimony or
any explanation as to why this information was not com-
municated in the normal course of business to Rodriguez.
The failure to call these two management witnesses in the
circumstances, or account for their unavailability, leads to
the inference that their testimony would have been adverse
to Respondent. See McCormick, Evidence §272 (2d ed.,
1972). Rodriguez' testimony that Lehmiller was fired for
failure to come in to work on October 8, or during the
period after September 27, is not credited. It is noted that
Rodriguez testified that, "at the point when I saw [Lehmil-
ler on October 81, I knew I was going to fire her along with
Mrs. Murphy." I find it significant that Rodriguez should
in this situation identify Lehmiller with Murphy, who had
been the principal employee organizer for the Union, and
whose discharge has previously been found to have been
discriminatory within the meaning of the Act.
For the reasons stated, and on the record as a whole, it is
found that by the discharge of Judith Lehmiller, Respon-
dent discriminated against an employee in violation of Sec-
tion 8(a)(1) and (3) of the Act.18
C. Involving Georgeanna Van Camp 19
Van Camp was employed by Respondent on March 4, as
a nurses aide. It appears that Respondent has a department
head over the nurses aides named Gates. The supervisor
over these employees is Cheryl Ann Croston, the nursing
director. From Rodriguez' testimony I infer that Van
Camp was originally highly regarded as an employee.
There is no dispute, however, that from May onward, Van
Camp was quite frequently late at work. She admits to
being excessively tardy. Because of this, Van Camp would
often miss directions as to the work that day given to the
nurses aides in the morning, and as a result her work began
to deteriorate. Croston discussed this with Rodriguez. On
September 27, Rodriguez spoke with Van Camp about her
tardiness.20 Van Camp explained the reasons for her tardi-
ness, apologized for it, and told Rodriguez that she was not
intentionally late, and that she would correct this matter.
Croston, later that day, had a group meeting with nurses
aides in which this same subject was discussed.
Sometime previous to this, Van Camp had heard from
some of her coworkers that Gates had told them that if
Van Camp did not correct her tardiness, she would be
discharged. In fact, Gates' husband had undertaken the
practice of calling Van Camp in the morning to make sure
she was up in time to get to work when scheduled.
Van Camp signed a union card for Murphy on Septem-
ber 21. She also attended a union meeting held on October
10 and thereafter wore a union button at work. There is no
evidence that anyone in management saw her wearing the
button. It might be reasonable to infer that management
must have seen this. In any event, as a result of the report
18 The fact that Lehmiller was a probationary employee at the time does
not remove her from the protection of the Act.
19 Van Camp 's given name is spelled variously in the transcript and the
exhibits. I have taken the spelling from Union Exh. 1, which purports to be
in her handwriting.
20 Van Camp places this talk on October 5. However , Rodrigues testimo-
ny is supported by a dated memo that he made at the time, and by a memo
that Croston prepared concerning a group meeting later that day.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Rodriguez received on the union meeting, as discussed
hereinafter, I infer that by October 11, Rodriguez was
aware that Van Camp had attended the union meeting.
The record shows the following record of tardiness by
Van Camp since September 27:
Friday, September 27-4 minutes; Monday, September
30-5 minutes; Tuesday, October 1-45 minutes; Wednes-
day, October 2-15 minutes; Thursday, October 3-30
minutes; Sunday October 6-3 minutes; Tuesday, October
8-6 minutes ; Wednesday, October 9- 15 minutes ; Thurs-
day, October 10-4 minutes; Friday, October 12-1 min-
ute.
On October 11, Croston again discussed with Rodriguez
Van Camp's continued tardiness and deterioration in work,
and it was decided to discharge her. Rodriguez stated that
he decided to let Van Camp finish out the week. On Satur-
day, October 12, Van Camp was directed to see Esber in
his office . She relates that Esber gave her an envelope with
her termination slip for tardiness , but avoided discussing
with her the reasonableness of Respondent 's action.
Considering that the record shows that other employees
who were not discriminated against also wore union but-
tons at work and attended the union meeting, the fact that
Van Camp's identification with the Union was minimal,
that no personal animosity toward her is shown, and, par-
ticularly, the adequacy of the cause relied on by Respon-
dent for her termination which does not appear pretextual,
it is found that the General Counsel has not established by
a prepondernace of the probative evidence on the record as
a whole that Respondent discriminated against Van Camp
to discourage membership in a labor organization in viola-
tion of the Act. It will therefore be recommended that this
allegation of the complaint be dismissed.
D. Alleged Solicitation of Surveillance
Donna Creek, who is employed by Respondent as a di-
etary aide, testified that on the day of the union meeting
(which Creek recalled as being held on October 9), Rodri-
guez approaced her and asked her to go to the union meet-
ing and report back to him how many had gone to the
meeting . She further stated that Rodriguez also told her
that he wanted Head Cook Helen Cox to go with her.
Creek asserts that they also talked about certain problems
with food supplies. Creek states that she thereafter asked
Cox to go to the meeting with her, telling her that Rodri-
guez wanted her to go. She says Cox agreed that if Rodri-
guez wanted her to go, she would do so. Creek testified that
the two attended the meeting which began at 3:30 that
afternoon, and the next day Rodriguez asked Cox and her-
self how many employees had attended and whether there
were enough interested to bring the Union in. She replied
that there were seven employees in attendance including
Creek and Cox. She says that they then proceeded to dis-
cuss problems concerning food at the home.
Cox denied that Creek told her that Rodriguez wanted
her to go to the union meeting, or that Rodriguez asked her
to go . She says she wanted to go merely because she was
interested . Since the meeting was at 3 : 30 in the afternoon,
and Cox' workday did not end until 5:15 p.m., she says she
asked Rodriguez if she could go, and that he replied that it
was up to her. On direct examination, testifying with re-
spect to this matter , in response to a direct question, Cox
denied that "[a]fter the meeting was over [she had] a dis-
cussion with Mr. Rodriguez with respect to that meeting."
On cross-examination , however, she agreed that there was
such a discussion , saying that she told Rodriguez that at
the meeting there was discussion "about him dismissing
Mrs. Smith , I think her name was, she was late coming in
all the time and all they talked at the meeting was they was
gonna hang them .... And this Judith Lehmiller. We
were talking about his reprimanding Martha Smith at the
time , for coming in late , she was not dismissed yet. And,
she was always late. . . . I told him about writing down
our names and the hourly rates. I told him that." 2
Rodriguez denied asking Creek or Cox to go to the
union meeting, or asking Creek to have Cox go to the meet-
ing, or seeking information about what occurred at the
meeting. He states that both of them asked if it would be
all right if they went to the meeting, and that he told them
that it was up to them.22 He states that he told Cox that she
might leave work early if her work was completed. (Cox, in
fact, was not paid from 3 p.m. when she clocked out that
day.) Rodriguez asserts that, on the following day, he did
not ask either Creek or Cox to report to him about the
meeting . He states that the two (or one of them) did come
up to him and tell him that there was a sparse crowd at the
meeting, and started to give him the names, but that he
quickly walked away.
Discussion
This issue has given me considerable difficulty. I have
not been able on the basis of demeanor alone to determine
whether Creek or Cox is the more, or the less, trustworthy.
So I have carefully considered other factors. Creek's testi-
mony is somewhat bolstered by the fact that she is still
employed, and might well be restrained from concocting
an untrue story concerning the head cook with whom she
still must work. More importantly, if she were to make up
a story out of the whole cloth, I believe that she would
realize that by involving Cox in the story she was inviting
contradiction. In addition, Cox' testimony has certain sig-
nificant flaws: Experience shows that employees frequently
go to union meetings only out of curiosity, but this is the
first occasion that I have encountered one willing to give
up 2 hours' pay merely to satisfy that curiosity. Cox appar-
ently had no other contact with the Union, and attended
no other meetings. Lastly, I was somewhat taken aback by
her abrupt change in testimony concerning whether or not
she had reported to Rodriguez about the union meeting,
particularly since her memory concerning that report final-
ly turned out to be quite detailed.
21 At the union meeting , the union representative had those in attendance
write down their names and wage rates on a single sheet of paper, which was
received as Union Exh I As previously mentioned , I infer, contrary to
Rodriguez testimony , hereinafter discussed , that he was informed of the
names of those who attended the meeting.
22 There was some testimony at the hearing in relation to this issue that
Respondent's counsel had earlier that day advised the employees , in a dis
cussion of their rights, that they had the right to attend union meetings if
they desired . This does not seem to be mentioned in Respondent 's brief
WESTBROOK PARK NURSING HOME
Nevertheless , I have been impressed with Respondent's
argument in its brief that it is not logical that Rodriguez
would have made such a request of a kitchen aide , when he
could have more sensibly gone directly to the head cook
with his request if he wanted a confidential report on the
union meeting . Possible answers occur-e .g., Rodriguez
might have thought that the head cook would not be per-
mitted to attend the meeting unless accompanied by a rank
and file employee-but these have no record support. After
consideration , and with some doubt , I have concluded that
the preponderance of the factors involved support Creek's
credibility as against the versions of Cox and Rodriguez. It
is therefore found that Respondent, by soliciting employ-
ees to attend a union meeting and report on the meeting,
and by questioning those employees concerning what oc-
curred at the meeting, violated Section 8 (a)(1) of the Act.23
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Barbara Murphy and Judith Ann
Lehmiller, Respondent discriminated in regard to the hire
or tenure of employment of its employees discouraging
membership in and activities on behalf of labor organiza-
tions, and thereby engaged in unfair labor practices in vio-
lation of Section 8 (a)(1) and (3) of the Act.
4. By soliciting its employees to attend and report on a
union meeting and requesting that they inform manage-
ment as to the union meeting , by threatening an employee
with discharge for engaging in union activities , Respondent
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not engage in unfair labor practices
in violation of the Act by the discharge of Gerogianna Van
Camp.
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully dis-
charged Barbara Murphy and Judith Ann Lehmiller, it will
be recommended that Respondent offer each of them im-
mediate and full reinstatement to their former jobs, or, if
such jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority and other rights , privi-
leges , or working conditions , and make them whole for any
23 Although Respondent argues in its brief that there is no evidence in
support of General Counsel 's allegation that Rodriguez interrogated em-
ployees about their union activity, General Counsel at the hearing stated
that he was relying on Creek 's testimony in support of this allegation of the
complaint.
1163
loss of earnings suffered by reason of such discrimination,
by paying to each of them a sum of money equal to the
amount each would have earned from the date of the dis-
crimination against her, as found herein , -to the date of
Respondent's offer to reinstate her as aforesaid , less her net
earnings during that period, in accordance with the
Board 's formula set forth in F. W Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum, as set forth in his Plumbing & Heating
Co., 138 NLRB 716 (1962).
As the unfair labor practices committed by Respondent
are of a character striking at the root of employee rights
safeguarded by the Act, it will be recommended that Re-
spondent be ordered to cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the
Act. See Brads Machine Products, Inc., 191 NLRB 274
(1971).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER24
The Respondent, Westbrook Park Nursing Home, Can-
ton, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against em-
ployees in order to discourage membership in or support of
Retail Clerks International Association, Local 698, AFL-
CIO, or any other labor organization.
(b) Threatening employees with discharge, or other re-
prisal, for joining a union or engaging in union activities or
supporting a union.
(c) Requesting or requiring employees to report on
union meetings or other union activities, or otherwise coer-
cively interrogating employees concerning union activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Barbara Murphy and Judith Ann Lehmiller
immediate and full reinstatement to their former jobs, or, if
those jobs no longer exist, to substantially equivalent jobs,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them,
in accordance with the provisions of the section entitled
"The Remedy" above.
(b) Preserve and make available to the Board, or its
agent , upon request, payroll and other records to facilitate
the effectuation of the order herein.
(c) Post at its operations at Canton, Ohio, copies of the
attached notice marked "Appendix." 25 Copies of said no-
24 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.
25 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Continued
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice , on forms provided by the Regional Director for Re-
gion 8 , after being duly signed an authorized representative
of Respondent, shall be posted by it immediately upon re-
ceipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places , including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered , defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 8, 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 be, and it here-
by is dismissed insofar as it alleges any violation of the Act
not found hereinabove in this Decision.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The law states that employees shall have the right:
To form , join, or assist labor organizations
To bargain collectively through representatives of
their own choosing
To engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection
To refrain from any or all such activities, except as
may be required by a legal agreement between an
employer and the representative of the employees.
WE WILL NOT discharge or discriminate against our
employees because they join or help Retail Clerks In-
ternational Association, Local 698, AFL-CIO, or any
other labor organization.
WE WILL NOT threaten to discharge or otherwise
harm our employees because they join or help a union.
WE WILL NOT ask or require our employees to report
on union meetings or other union activities , or other-
wise coercievely interrogate our employees about
union activities.
WE WILL NOT in any other manner interefere with,
restrain, or coerce our employees in the exercise of
rights protected by the law.
WE WILL offer Barbara Murphy and Judith Ann
Lehmiller immediate and full reinstatement to their
former jobs , or, if those jobs no longer exist , to sub-
stantially equivalent jobs, without prejudice to their
seniority , or other rights, privileges , or working condi-
tions.
WE WILL make Barbara Murphy and Judith Ann
Lehmiller whole for any loss of pay or other benefits
suffered by them as a result of the discrimination
against them.
WESTBROOK PARK NURSING HOME