NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
March 20, 2008
DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE
By members Liebman and Schaumber
On March 30, 2007, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and Charging Party filed answering briefs. The General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions only to the extent consistent with this Decision, Order, and Certification of Representative and to adopt the recommended Order as modified and set forth in full below.[2]
The judge found that
As explained, we reverse the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(1) by interrogating employees, through Administrator Penni Martin, about their union activities.
The
The judge, without resolving the differences between Masters’ and Martin’s testimony, found that this single incident “was essentially trivial and non-coercive,” noting that managers and employees were aware of the meeting and its time and place as a result of the notices posted inside the facility. We disagree.
The test for whether an unlawful interrogation occurred is
“whether under all the circumstances the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act.” Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). The Board considers
such factors as whether the interrogated employee is an open or active union
supporter, the background of the interrogation, the nature of the information
sought, the identity of the questioner, and the place and method of the
interrogation.
Applying the Rossmore House factors, we find that the Respondent unlawfully interrogated the employees. First, although the questioning was in the employees’ break room and not a management office, it was done by the Respondent’s highest-ranking manager at its facility, Administrator Martin. Second, although the time and location of the union meeting were publicized, there is no indication that the particular employees questioned in the break room were open and active about their union activities. Indeed, the testimony indicates otherwise. Even assuming, arguendo, that signing the union petition that had been posted in the facility constituted open and active union support, only two of the five to six employees present had signed the petition. Moreover, the Respondent does not contend that any of the questioned employees previously had discussed the topic of union meetings or any other union activities with Martin or that she had any lawful reason to ask the employees how the union meeting went. Although Martin denies that she directly asked the employees who attended the union meeting, she admits that she asked the employees how the union meeting had gone. The employees’ responses would reveal, at the least, whether they attended the meeting; thus, the employees were put in a position of having to confirm or deny protected activity that they have a right to keep confidential. We find that Martin’s questions reasonably tended to restrain, coerce, or interfere with employees’ Section 7 rights.[5]
ii. denial of access to and suspension of off-duty
employee winsome kitson
We adopt the judge’s finding that the Respondent violated Section 8(a)(1) by attempting to deny Kitson access to its facility. We also adopt the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by suspending Kitson.[6]
On the day of the election, union supporter Kitson became involved in a discussion with Penni Martin. Although Kitson denied some of the conduct attributed to her by Martin, which was alleged as the basis for Kitson’s subsequent suspension from work, the following events are undisputed. The Respondent sponsored various events on election day, which occurred during National Nursing Home Week. The events included a wheelchair race for residents and a party for staff members in the recreation room. The timing of the party overlapped with the afternoon election session and an employee shift change. As is customary, off-duty employees were among those picking up paychecks; the Respondent did not have a policy against off-duty employees entering the facility. Employees picking up paychecks, including Kitson, were told to pick up free coffee mugs that the Respondent was distributing in the recreation room.
As Kitson was walking toward the recreation room to get her coffee mug after picking up her paycheck, Martin approached her and asked what she was doing there. Kitson responded that she was picking up her paycheck, and Martin told her that she had to leave the facility because she was not on duty. Kitson told Martin that she was going to get a coffee mug, and the two women entered the recreation room. During their conversation, Kitson asked Martin if she was going to tell other off-duty employees to leave, and Martin said yes. Martin, however, did not subsequently do so. Earlier in the day, Martin had told union supporters Avril Wallace and Fay Richards to leave. Martin acknowledged that the Respondent had no policy against off-duty employees entering the facility; she testified that she had decided to implement this edict on the day of the election because she realized at that time “that it had become so chaotic that day with all of the activities for the residents that were happening . . . and the voting and all of the people in the building.” In the recreation room, both Kitson and Martin spoke to several other employees who were present, and Kitson eventually left the building.
Martin acknowledged that there might have been other off-duty employees in street clothes in the recreation room, but she testified that she did not pay much attention. Two employees testified that Martin initiated conversations with them upon entering the recreation room, including complimenting employee Tameka Edwards on her clothing (because Edwards was off duty, she was not in uniform).
In contrast to these undisputed facts, the record reflects several differences in the witnesses’ versions of events. Martin testified that she told several members of her management team, including then-Director of Nursing (DON) Carol Mortensen, of her ad hoc decision to exclude off-duty employees from the facility, but Mortensen denied that Martin told her to ask off-duty employees to leave. Martin additionally testified that, when she approached Kitson, asking her to leave, Kitson yelled loudly at her, waved her hands and paycheck close to Martin, and made several allegedly threatening statements to her in the recreation room. This testimony was partially corroborated by Jennifer Donovan, a registered nurse supervisor and Martin’s friend, but the judge credited Kitson, who denied making the alleged statements or waving anything in Martin’s face. Rather, according to Kitson, she asked Martin why she was harassing her when there were other off-duty employees at the party. Several witnesses corroborated Kitson’s testimony, including DON Mortenson. The judge found that “at most,” Kitson said either to Martin (or to other employees in the room) that Martin didn’t know who she was messing with. The Respondent thereafter suspended Kitson because of what had occurred between her and Martin that day.
We agree with the judge, for the reasons he stated, that Martin’s conduct in telling Kitson that she had to leave the facility interfered with the employees’ rights to engage in Section 7 activity and therefore violated Section 8(a)(1).
We also agree with
the judge that Kitson’s subsequent suspension violated Section 8(a)(3) and (1).[7] The Respondent claims that it suspended
Kitson because she failed to leave the facility and because of her alleged
threats. There is no dispute that the
Respondent had knowledge of Kitson’s prominent union activity, including her serving
as the
We further find that Kitson’s protest against the Respondent’s unfair labor practice was not sufficiently egregious to remove it from the protection of the Act. In determining whether an employee’s conduct is so opprobrious as to lose the Act’s protection, the Board balances the following factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Atlantic Steel Co., 245 NLRB 814, 816 (1979). All four factors favor finding Kitson’s conduct to be protected. The incident occurred in and near the recreation room, not in a work area where work could be disrupted. The subject matter involved the issue of whether Kitson had a right to remain on the Respondent’s property, and whether Martin was discriminating against her because she was a union supporter. The nature of Kitson’s outburst involved no profanity and no threatening conduct, according to the facts credited by the judge.[10] Finally, Kitson was provoked by Martin’s unfair labor practice of trying to interfere with Section 7 rights by excluding only active union supporters from the facility on the day of the election.
iii. unilateral changes
We reverse the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) by unilaterally eliminating the rehabilitation aide position and transferring its duties to certified nursing assistants. We also reverse the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) by unilaterally changing the work schedules of two employees.
A. Unilateral Elimination of Rehabilitation Aide Position
Carol Blackwood-Lindsey, who holds a certification as a certified nursing assistant (CNA), was hired as a rehabilitation aide (RA) in 1997. An RA works with patients to perform certain exercises to restore the patient’s range of motion; these RA duties are somewhat different from those of the CNA position. CNAs also do some range of motion exercises with patients, but CNAs have additional tasks. As an RA, Blackwood-Lindsey worked Monday through Friday, but not on weekends. Sometime in 2004, the Respondent reassigned Blackwood-Lindsey to work 3 days a week as an RA and 2 days a week as a CNA. In May 2006, several weeks before the election, the Respondent reassigned Blackwood-Lindsey to again work a Monday through Friday schedule as an RA.
In early August (several months after the
We find merit in the General Counsel’s exceptions. In Finch,
Pruyn & Co., 349 NLRB No. 28, slip op. at 8–9 (2007), the Board found
that an employer violated Section 8(a)(5) by unilaterally eliminating a unit
position called a “pcc oiler” and reassigning the position’s duties, which took
about an hour per day, to another oiler position. The Board reiterated that the elimination of
a unit job is a mandatory subject of bargaining, even if the job is eliminated
for economic reasons.
Here, the Respondent’s elimination of the RA position and
transfer of duties to the CNA position was a material and substantial change no
different from the unilateral change in Finch,
Pruyn. The fact that RA duties can
easily be assigned to other employees without necessarily increasing their
hours of work does not negate the fact that a unit position has been eliminated
and the duties of the position redistributed without giving the Union prior
notice and an opportunity to bargain.
Moreover, the decline in the number of patients is analogous to the lack
of full-time pcc oiler work in Finch,
Pruyn and does not rise to the level of compelling economic
considerations.
B. Unilateral Changes to Work Schedules
Because CNAs are required to work every other weekend, the unilateral change described above resulted in Blackwood-Lindsey’s having to work weekends rather than her former Monday through Friday schedule. When changing Blackwood-Lindsey’s schedule, Martin realized that another CNA, Avril Wallace, did not work weekends. Although Wallace had been working only Monday through Friday for 20 years at the Respondent’s facility, the Respondent subsequently required her to work alternating weekends like all other CNAs.
Again, it is undisputed that the Respondent did not
provide notice to the
We find merit in the General Counsel’s exceptions. The Board has held that an employer violates
Section 8(a)(5) by making unilateral changes in the workweek that require
employees to work on weekends and take days off during the normal
workweek. Mimbres Memorial Hospital, 342 NLRB 398, 399 (2004), enfd. sub nom.
NLRB v. Community Health Services,
482 F.3d 683 (10th Cir. 2007) (changed schedule that included weekend work
found to be a unilateral change); Pepsi-Cola
Bottling Co. of Fayetteville, Inc., 330 NLRB 900, 904, 912 (2000), enfd.
mem. 2001 WL 791645 (4th Cir. 2001) (requiring employees to work on the weekend
for the first time was deemed to be a mandatory subject of bargaining). Significantly, the Board in both cases held
that such changes are material and substantial changes to terms and conditions
of employment.
The judge’s reasoning that the Respondent’s unilateral
change affected only two employees is similarly unpersuasive. The Board rejected such an argument in Carpenters Local 1031, 321 NLRB 30, 32
(1996) (Board is not precluded from finding 8(a)(5) violation even if unilateral
change affects only one employee). See
also Georgia Power Co., 325 NLRB 420,
420 fn. 5 (1998) (“[I]f a change involves the terms and conditions of employment
of unit employees, it is a mandatory subject even if only a relatively few
employees are affected.”), enfd. mem. 176 F.3d 494 (11th Cir. 1999), cert. denied
528
iv. election objections
We have also considered objections to the election held on
May 18, and the judge’s decision recommending disposition of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally
of ballots shows 68 votes cast for and 42 votes cast against New England Health
Care Employees Union, District 1199, SEIU (the Union), with 7 challenged
ballots, an insufficient number to affect the results. As discussed below, we affirm the judge’s
decision to overrule the Employer’s objections to the election and we certify
the
A. Kitson/Martin Incident
The Respondent alleged that the incident involving Winsome
Kitson and Penni Martin, described above, constituted objectionable conduct. The judge recommended overruling this objection,
noting his finding that Kitson did not make any threatening statements to
Martin or engage in any conduct that could reasonably be construed as
threatening. The Respondent excepts,
arguing, inter alia, that Kitson threatened and intimidated Martin, which had a
similar effect on eligible voters. The Respondent
alleges that Kitson was an agent of the Union because she served as its observer,
engaged in leafleting, appeared in campaign materials, drove coworkers to the
polling place, and spoke out on behalf of the
The judge did not specify whether he was applying the party standard (whether the conduct “reasonably tend[ed] to interfere with the employees’ free and uncoerced choice in the election”), which would apply if Kitson was an agent of the Union, or the third-party standard (whether the conduct was “so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible”). Robert Orr-Sysco Food Services, 338 NLRB 614, 615 (2002), and cases cited therein. Based on the facts as credited by the judge, Kitson’s conduct does not satisfy either the third-party standard or the party standard for objectionable conduct. As the judge found, Kitson said, at most, either to Martin or to other employees in the recreation room that Martin didn’t know who she was messing with. As noted above, he credited testimony that Kitson neither yelled nor made any threatening gestures or statements. Given the context of Kitson’s statement, which was part of a “very minor” conversation in which she was protesting Martin’s unfair labor practice, we find no threat that could have interfered with employees’ free choice or created a general atmosphere of fear and reprisal.
B. The
The Respondent also alleged that the
The judge concluded that the Respondent’s evidence was
based solely on hearsay because the Respondent did not present any direct
evidence from unit employees as to what the
We agree with the judge’s recommendation to overrule this
objection. Even assuming, as the judge
did, that some employees misunderstood the dues policy, there is no evidence
that the
Amended Remedy
Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act.
As we
have adopted the judge’s finding that the Respondent illegally suspended
Winsome Kitson, we shall order it to offer her full reinstatement to her
former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges
previously enjoyed, and to make
her whole for any loss of earnings and other benefits, computed on a quarterly
basis from the date of the suspension to the date of a proper offer of
reinstatement less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
We amend the judge’s proposed remedy to address the additional 8(a)(5) violations that we have found. The Respondent must, at the Union’s request, rescind the unilateral changes it has made, provide the Union notice and an opportunity to bargain prior to implementing such changes in the future or any other changes in wages, hours, or other terms and conditions of employment, and make its employees whole for their losses. Any backpay due for these violations shall be determined in the manner set forth in Ogle Protection Service, 183 NLRB 602 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The Respondent,
1. Cease and desist from
(a) Coercively interrogating employees about their union activities.
(b) Preventing off-duty employees from entering the
facility in order to talk to other employees about the
(c) Suspending employees because of their union or protected concerted activity;
(d) Unilaterally eliminating the position of “Rehabilitation
Aide” and transferring those duties to the Certified Nursing Assistants without
first giving notice to and bargaining with the
(e) Unilaterally changing employees’ work schedules
without first giving notice to and bargaining with the
(f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Winsome Kitson full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Winsome Kitson whole for any loss of earnings and
other benefits suffered as a result of the discrimination against her, in the
manner set forth in the amended remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspension of Winsome Kitson, and within 3 days thereafter notify the employee in writing that this has been done and that the suspension will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees, notify and, on request,
bargain with the
All full-time and regular part-time service and maintenance
employees, including all certified nursing assistants, rehabilitation aides, dietary
aides, recreation aides, cooks, housekeepers, laundry aides, scheduler/supply
coordinators, receptionists, and maintenance employees, but excluding all
business office clerical employees, department heads, certified therapeutic
recreation directors, payroll clerks, and all other employees, and all
professional employees, guards and supervisors
as defined in the Act.
(f) On the
(g) On the
(h) Make Carol Blackwood-Lindsey and Avril Wallace whole for losses suffered as a result of the unlawful changes in the manner set forth in the amended remedy section of this decision.
(i) Within 14 days after service by the Region, post at
its
(j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
3. Substitute the attached notice for that of the administrative law judge.
CERTIFICATION OF REPRESENTATIVE
It is certified that a majority of the valid ballots have been cast for New England Health Care Employees Union, District 1199, SEIU, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit:
All full-time and regular part-time service and maintenance employees, including all certified nursing assistants, rehabilitation aides, dietary aides, recreation aides, cooks, housekeepers, laundry aides, scheduler/supply coordinators, receptionists, and maintenance employees, but excluding all business office clerical employees, department heads, certified therapeutic recreation directors, payroll clerks, and all other employees, and all professional employees, guards and supervisors as defined in the Act.
Dated,
Wilma
B. Liebman, Member
Peter C. Schaumber, Member
(seal) National Labor Relations Board
Appendix
Notice To Employees
Posted By Order Of The
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not coercively interrogate you about your union activities.
We will not prevent off-duty employees
from entering the facility in order to talk to other employees about the
We will not suspend employees because of their union or protected concerted activity.
We will not unilaterally eliminate the
position of “rehabilitation aide” and transfer those duties to the Certified
Nursing Assistants without first giving notice to and bargaining with the
We will not unilaterally change employees’
work schedules without first giving notice to and bargaining with the
We will not in
any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days from the date of the Board’s Order, offer Winsome Kitson full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
We will make Winsome Kitson whole for any loss of earnings and other benefits resulting from her suspension, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful suspension of Winsome Kitson, and we will, within 3 days thereafter, notify her in writing that this has been done and that the suspension will not be used against her in any way.
We will, before implementing any changes in wages, hours, or other terms and conditions of employment of our unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following bargaining unit:
All full-time and regular part-time service and maintenance employees, including all certified nursing assistants, rehabilitation aides, dietary aides, recreation aides, cooks, housekeepers, laundry aides, scheduler/supply coordinators, receptionists, and maintenance employees, but excluding all business office clerical employees, department heads, certified therapeutic recreation directors, payroll clerks, and all other employees, and all professional employees, guards and supervisors as defined in the Act.
We will, on the
We will, on the
We will make Carol Blackwood-Lindsey and Avril Wallace whole for losses suffered as a result of the unlawful changes less any net interim earnings, plus interest.
Jennifer Dease, Esq., for the General Counsel.
John G. Zandy, Esq., for the Respondent.
Kevin A. Creane, Esq., for the
DECISION
Statement of the Case
Raymond P. Green,
Administrative Law Judge. I heard this case in
A petition for an election was filed by the
The Board issued a Decision and Order on October 26, 2006 sustaining the Regional Directors findings with respect to the Objections.2
The charge and amended charge in 34–CA–11512 were filed on May 25 and July 31, 2006. The charge in 34–CA–11536 was filed on June 22, 2006. The charge and amended charge in 34–CA–11559 were filed on July 24 and October 30, 2006. The charge and amended charge in 34–CA–11562 were filed on July 28, and October 30, 2006. The charge and amended charge in 34–CA–11600 were filed on September 22 and October 30, 2006.
The Regional Director issued a complaint on August 30, 2006, and issued another consolidated amended complaint on October 31, 2006. The latter complaint, which consolidated all allegations, made the following assertions.
1. That on May 1,
2006, the Respondent, by letter, threatened employees with the loss of hours if
they selected the
2. That on or about July 21, 2006, the Respondent, by Penni Martin, (a) interrogated employees about their union activities and (b) created the impression that their union activities were being kept under surveillance.
3. That in its “Employee Handbook,” the Respondent maintained a rule, enforceable by disciplinary action, prohibiting employees from discussing each other’s salaries.3
4. That on or about May 18 and 19, 2006, the Respondent for discriminatory reasons, denied its employee Winsome Kitson access to its facility and suspended her from employment.
5. That on or about
May 18, 2006, a majority of the employees in an appropriate bargaining unit,
selected the
All full-time and regular part time service and maintenance employees, including all certified nursing assistants, rehabilitation aides, dietary aides, recreation aides, cooks, housekeepers, laundry aides, scheduler/supply coordinators, receptionists, and maintenance employees, but excluding all business office clerical employees, department heads, certified therapeutic recreation directors, payroll clerks, and all other employees, and all professional employees, guards and supervisors as defined in the Act.
6. That on or about
June 29, 2006, the Respondent unilaterally and without affording the
7. That on or about
July 13, 2006, the Respondent unilaterally and without affording the
8. That on or about
September 18, 2006, the Respondent unilaterally and without affording the
9. That on or about
September 23, 2006, the Respondent unilaterally and without affording the
10. That on or about October 1, 2006, the Respondent unilaterally
and without affording the
At the hearing, based on a non-Board Settlement, the
1. The contention that the rule in the handbook prohibiting employees from talking to each other about their pay and benefits was unlawful. The Company agreed to delete this provision from the employee handbook.
2. The contention that the Company unilaterally implemented an attendance policy concerning making up weekend shifts. The parties agreed that this “change” was not actually implemented and that the Company would maintain the status quo as it existed before the election.
3. The contention that the Company unilaterally instituted a policy of enforcing its previously unenforced telephone usage policy. The evidence showed that after the purported change, the rule continued to be unenforced and the Company agreed to maintain the status quo as it existed before the election.
Based on the evidence as a whole, including my observation of the demeanor of the witnesses and after consideration of the Briefs filed, I hereby make the following findings and conclusions.
Findings and Conclusions
i. jurisdiction
It is admitted and I find that the Respondent is engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also is admitted that the
ii. alleged unfair labor practices
A. Background
The Company operates a 120-bed nursing home in
The
Carol Mortenson testified that during conversations that she had with Penni Martin, the latter told her that she was aware that Kitson, Avril Wallace, and another employee named Bernadette were very strong union supporters.
On or about April 10, 2006, Wallace and a group of about
20 employees entered the premises where they made a demand for
recognition. On that same day, the
B. The May Memorandum
On May 1, 2006, the Employer issued a memorandum to employees stating that there would be an election on May 18, 2006 and that management believed that union representation would not be in the best interest of the employees. The memorandum noted that within the next few weeks, management would be holding a series of mandatory meetings to discuss union representation and collective bargaining. There is one sentence in this memorandum that the General Counsel alleges to be an illegal threat of reprisal. This states:
This is a very important issue that will affect each and every staff member. It can affect your status as a per diem employee, the availability of hours and the ability of our managers to use per diem staff to assure adequate staffing.
In my opinion, the memorandum does not rise to the level of a threat of reprisal. In her brief, the General Counsel underlined the first sentence, which states that the election will affect each and every staff member. That sentence, constituting a generalized prediction that electing union representation will affect the staff is self evidently true, but nonspecific. The second portion of the memorandum merely states that the selection of a union can affect per diem employees in terms of their status and hours of work. It does not state how it can affect these employees and doesn’t even indicate that a possible affect might be adverse. A statement that the selection of a union can affect terms and conditions of employment is self evident and should reasonably be construed not as a threat that the employer will take a specific adverse course of action, but that negotiations may change the existing hours and terms and conditions of employment for the people encompassed by the negotiations.
C. The Election, the Party and the Suspension of
Winsome Kitson
The election was held on Thursday, May 18 (a payday), and
it was held in two sessions. The first session was held from 6 to 8 a.m. The second session was held from 2 to 5 p.m.
At the first session, the
Also on May 18, the Employer had previously chosen to have some other events at the facility. One was a wheelchair race held in the lobby area of the facility. The second was a party to which all employees had been invited and which was held from 11 a.m. to about 4 p.m. in the recreation room. (Thus overlapping the afternoon session of the election). The party, described by Martin in her announcement as the “Big Event” was held in a large room that was located between the lobby where employees picked up their paychecks and the dining room where the election was being conducted. It is clear to me that the party was conducted by the Company so as to contain a mild form of electioneering. In this regard, employees were given mugs, plates, and cups that contained the phrases, “give Penni a chance,” and “Union no.”
The Respondent asserts that the reason it suspended Kitson was because she refused to leave the facility when asked to do so by Martin and that she threatened Martin during the transaction.
Martin claims that sometime on the morning of May 18, she
thought that the situation at the facility was going to be too chaotic given
the election, the party and the wheelchair races. She testified that she therefore decided to disinvite
from the party, all employees who
were not on duty. This ad hoc decision
made by Martin, was contrary to existing policies and/or practices that allowed
off-duty employees to visit the facility and talk to other employees. It also was not communicated to any employees
except for employees known by Martin to be union activists. In this regard, the
evidence shows that it was not applied to any other employees who attended the
party and who were not on duty at the time.
Indeed, it is obvious that Martin essentially decided to exclude from
this party, (where the Employer was engaged in a form of electioneering), those
individuals who Martin knew might try to convince employees to vote in favor of
unionization. In effect, Martin decided to
exclude Kitson, Richards, and Wallace because she thought they might undermine
the Respondent’s last minute attempt to influence the employees to vote against
the
The evidence shows that after obtaining her check from the receptionist in the lobby, Kitson was told that they were giving out mugs to employees in the recreation room. As Kitson proceeded to the room, Martin came up behind her and asked where she was going. When told, Martin informed Kitson that she had to leave because she was not on duty. Kitson ignored her and continued into the recreation room where she got her mug. During that brief period of time, Martin again asked her to leave and Kitson asked Martin why she was harassing her when other off-duty employees were in the room and attending the party. Shortly thereafter, Kitson left and went out to the parking lot where she reported the incident to union organizer Harris and to other employees.
Martin claims that when she approached Kitson and told her that she had to leave, Kitson started to yell and scream and began waving her check in her face. She states that when she followed Kitson into the recreation room, to ask her to leave, Kitson continued to yell and scream at her. According to Martin, while in the hallway and also inside the recreation room, Kitson said that she (Martin), didn’t know who she was messing with; that she was messing with the wrong person; and that she didn’t know who she was dealing with. Martin claims that based on Kitson’s statements and behavior, she was afraid that Kitson might assault her. She didn’t.
Martin’s testimony was corroborated to some degree by Jennifer Donovan who is a supervisor of the Respondent and a personal friend of Martin. On the other hand, the General Counsel offered the credible testimony of Kitson and four other employees who were present in the recreation room including Carol Mortenson, the former director of nursing. All of these people testified that they did not hear Kitson yell or scream or wave anything at Martin.4 To the extent that they heard anything said between Kitson and Martin, they testified that Kitson asked why other off-duty employees were being allowed to attend the party and she was not. They denied that Kitson engaged in any type of physical behavior that could be viewed as threatening. At most, Carol Mortenson testified that she heard Kitson say to some other employees in the room, that Martin didn’t know who she is messing with.
The evidence also shows that after Kitson left the facility and met with some people at the parking lot, she related the incident with Martin. Although described as being upset, witnesses testified that she did not yell, curse or scream. The harshest thing attributed to her was reported by Michelle Womack who testified that when she asked Kitson why Martin had asked her to leave, was told by Kitson; “she don’t know what [I’m] capable of.” In this regard, Kitson testified that Harris told her to write everything down because he might file a charge.
On Friday, May 19, 2006, Kitson was told on the phone by Penni Martin that she should not come to work and that the Company was investigating the alleged threats that Kitson made on May 18. Subsequently on May 25, Kitson was suspended and notified that she could not come back to work until she enrolled in an anger management course.5
In my opinion, Martin’s decision to exclude from the
facility, the known union activists, including Kitson, interfered with the employees’
rights to engage in union activity and therefore violated Section 8(a)(1) of
the Act. In this regard, off-duty
employees have always been allowed to visit the facility and talk to other
employees. The decision made by Martin
on May 18, 2006 was not designed to deal with an allegedly “chaotic situation.”
Rather, it is my opinion that Martin’s decision was designed to exclude only
those off-duty employees who might decide to go to the Respondent’s party and
by speaking in favor of the
Therefore, it is my opinion that the Respondent violated Section 8(a)(1) of the Act when Martin told Kitson that she had to leave the facility when Kitson was attempting to go to the party. Kitson ignored her and this caused what I think was a very minor confrontation between Kitson and Martin. The credible evidence shows that at most, Kitson said either to Martin or to other employees in the recreation room that Martin didn’t know who she was messing with. But this, in my opinion, is not even remotely equivalent to a threat of assault. I think that the description of the confrontation by Martin and her friend Donovan was greatly exaggerated. In short, I credit Kitson and the other witnesses who testified that Kitson, neither in the facility nor outside, cursed, yelled, screamed or otherwise made any gestures or statements that could be construed as threatening to a reasonable person.6
Inasmuch as the decision to suspend Kitson was made because of the transaction that occurred between her and Martin on May 18, and since that transaction was provoked by Martin’s unlawful attempt to force Kitson off the premises in order to prevent her from talking to other employees about the election, I conclude that the suspension violated Section 8(a)(1) and (3) of the Act.7
D. Alleged Interrogation and Impression of Surveillance
Cynthia Masters testified that on or about July 21, 2006, she and some other employees were in the break room when Martin asked if they had gone to the meeting and how it was. Masters assumed that Martin was talking about a union meeting that had been held the night before. She testified that after the other employees said that they had not gone to the meeting, Martin asked her if she was okay. Masters testified that at that point she replied that she was okay and that the two walked out together.
Regarding this incident, Martin testified that she knew about the union meeting because notices of the meeting had been posted inside the facility. She concedes that on the day in question she was in the break room and asked the employees how the meeting had gone. According to Martin, another employee, Janet Davis, said she hadn’t attended the meeting and she (Martin) replied that she really didn’t care who was at the meeting; that she was just making conversation.
In my opinion, this transaction, occurring 2 months after the election, was essentially trivial and noncoercive. The evidence shows that notices of the meeting had been posted inside the facility and therefore the time and place of the meeting was known to employees and management alike. That Martin asked a few employees about the meeting does not, in my opinion, rise to a level where employees could reasonably believe that their union activities were being kept under surveillance. Nor do I conclude that this single incident amounted to coercive interrogation.
E. Alleged Unilateral Changes
Carol Blackwood-Lindsay, who holds a certification as a CNA, (Certified Nurse’s Aide), was hired into a job title called a Rehabilitation Aide. In this capacity she worked with the rehabilitation department under the direction of physical, occupational and speech therapists. To the extent that she had any training, it was informal and obtained on the job.
Blackwood-Lindsey, as a Rehabilitation Aide, worked with patients who possibly could benefit from restorative aide. Essentially this seems to have consisted of walking patients and doing certain types of arm exercises that could be useful in restoring a person’s range of motion. This doesn’t seem to me to be very complicated and does not require much training. As a Rehabilitation Aide, her schedule was to work 5 days a week, not including weekends.
Some time in 2004, Blackwood-Lindsey was reassigned so that her schedule consisted of 3 days a week as a Rehabilitation Aide. She also was given the opportunity and accepted 2 days a week as a CNA.
It seems that because of the request of certain patients, Blackwood-Lindsey was reassigned to work as a Rehabilitation Aide for 5 days a week in early May 2006. This took place a couple of weeks before the election and as before, her schedule was from Monday to Friday.
In early August, 2006, Martin decided to eliminate the position of Rehabilitation Aide and notified Blackwood-Lindsey that although her job title was being eliminated she could continue to work as a CNA. This offer was accepted. At about the same time, other employees who worked as CNAs were also told that the Rehabilitation Aide position had been eliminated and that they would be assigned to do some of the work that had to be done with Blackwood-Lindsey’s patients. This resulted in some on the job training, which Avril Wallace described as taking about 5 minutes per patient.
As a consequence of the change, Blackwood-Lindsey was told that as a CNA, she would have to work every other weekend. When she told Martin that she had another job on weekends, Martin replied that all of the other CNAs were required to work alternating weekends and that she could not make exceptions because that could lead to a situation where some weekends might not be covered. Martin agreed to give Blackwood-Lindsey 30 days to make the transaction and ultimately the Respondent agreed to allow her to work every Saturday instead of working every other Saturday and Sunday.
Also as a result of this change, Martin testified that she realized that one other CNA, Avril Wallace, did not work on weekends. Wallace, who has worked for the Respondent for 28 years, testified that in mid September, Martin told her that as of October 1, 2006, she would have to work every other weekend. Wallace testified that she told Martin that she had been working Mondays to Fridays for 20 years and Martin responded that, “everybody who’s employed here will have to work every other weekend.”
There is no doubt that the Respondent unilaterally, and
without notice to or bargaining with the
The question is whether this set of changes was significant
or was essentially inconsequential.8
The elimination of the Rehabilitation Aide position changed, at least to a degree, the job of Blackwood-Lindsey. But prior to this change, she had worked for almost 2 years doing both the job of a Rehabilitation Aide and a CNA. And in many respects the jobs are not all that dissimilar. The things done by a Rehabilitation Aide in terms of helping patients to walk and moving their arms, is also done, perhaps to a lesser degree, by the CNAs. On the other hand, a Rehabilitation Aide does not have to do some of the things that CNAs do, such as feed or help wash patients.
From the point of view of Blackwood-Lindsey, the most basic change seems to be the alteration of her schedule from working Monday to Friday to being required to work alternative weekends, or as ultimately was the case, every Saturday. (For the same number of hours.). As far as I know, the change to working exclusively as a CNA did not result in any change in her pay or in any other term or conditions of her employment.
From the point of view of some of the other CNAs, the change did not make much difference in their jobs. Walking patients and doing arm exercises was something that they did during the course of their normal job duties and to the extent that there was any change, Avril Wallace said that it took about 5 minutes per patient to learn. There was no evidence that this resulted in any more overall work for these people.
The evidence shows that for many years, the practice of the Company was to require CNAs to work every other weekend. One exception was Blackwood-Lindsey who, since 2004 to May 2006, worked as a Rehabilitation Aide for part of the week and as a CNA for the remainder of the week. The other exception was Avril Wallace who was a very senior employee.
Accordingly, to the extent that we are talking about work schedules, what really took place was to have all employees conform to what had been basically the uniform practice of requiring CNAs to work alternative weekends. This affected only two employees in a much larger unit. One was Avril Wallace who for reasons unknown did not previously work weekends. And the other was Carol Blackwood-Lindsey, who had never previously been assigned to work full time as a CNA.
To the extent that we are talking about a change in Blackwood-Lindsey’s job functions or the actual job functions of the other CNAs, it is my opinion, that these changes were neither material nor substantial. See for example Sunoco Inc., 349 NLRB No. 26 (2007).
Based on the above, I therefore am going to recommend that these allegations be dismissed.
iii. the objections to the election
One of the Employer’s Objections is that on the day of the
election, employee Winsome Kitson, acting as the observer for the
The evidence regarding this objection has already been discussed in relation to my conclusion that the Respondent illegally suspended Kitson. I have concluded that when Penni Marti sought to force Kitson out of the facility at around 3 p.m., she did so in order to bar Kitson from talking to other employees about the election and thereby preventing Kitson from spoiling the Company’s party where it was engaged in its own last ditch electioneering. I have concluded that the credible evidence did not establish that Kitson made any threatening statements to Martin or that she engaged in any conduct that could reasonably be construed as threatening. Nor did I conclude that Kitson made any statements to employees that could reasonably be construed as threats to Martin.
Based on the above, I conclude that this Objection has no merit and should be overruled.
The Employer also alleged that representatives of the
Union told eligible voters that the
In support of this Objection, the Employer presented management employees who testified that at several meetings that the company held before the election, certain employees asserted that they were by the Union that if they worked at other facilities represented by the Union and paid dues there, they would not have to pay dues in relation to their employment at Bloomfield.
The Employer did not produce any witnesses who testified that they were told this by any union representatives and the employees who allegedly made these statements at the meetings were not union agents. Therefore, the testimony presented by the Employer was based solely on hearsay.
The evidence establishes that the
Assuming that some employees, who cannot be construed to
be union agents, misunderstood the
Conclusions of Law
1. By preventing off-duty employees from talking to other employees at the Company’s facility on May 18, 2006, the Respondent violated Section 8(a)(1) of the Act.
2. By suspending Winsome Kitson because the Respondent sought to prevent her from engaging in union and protected concerted activity, the Respondent violated Section 8(a)(1) & (3) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.
4. Except to the extent found herein, the Respondent has committed no other violations of the Act.
5. The Objections to the Election are without merit and should be dismissed.
Remedy
Having found that the Employer has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
As I have concluded that the Respondent illegally suspended Winsome Kitson, it must reinstate her to her former job and make her whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of such refusal less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended9
ORDER
The Respondent, Bloomfield Health Care Center,
1. Cease and desist from
(a) Preventing off-duty employees from entering the
facility in order to talk to other employees about the