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,
Camelot Terrace, Inc. and Service Employees International
May 28, 2009
SUPPLEMENTAL DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On March 4, 2008, Administrative Law Judge Lawrence W. Cullen issued a decision in this case dismissing a complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Crystal Lopez.1 The judge found that the Respondent had not discharged Lopez but, rather, that she had quit her job. On September 29, 2008, the Board issued a decision severing and remanding this complaint allegation, as the Board found that it turned on disputed facts and significant credibility issues that the judge had not adequately resolved. The Board directed the judge, on remand, to make reasoned credibility resolutions and findings of fact that detailed the supporting evidence and to either discredit or reconcile the evidence that contradicted those resolutions and factual findings.2
On December 18, 2008, Administrative Law Judge Lawrence
W. Cullen issued the attached supplemental decision. The Respondent filed exceptions, and the General Counsel and the
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,3 and
conclusions and to adopt the recommended Order.4
On remand, the
judge addressed the conflicting testimony and record evidence regarding issues
material to Lopez’ alleged unlawful discharge and made reasoned credibility
resolutions and findings of fact. Based
on his credibility resolutions and findings of fact, the judge found that Lopez
did not quit her job but, rather, that the Respondent discharged her. The judge further found that Lopez, who was
the leading supporter in the Union’s organizing campaign at the Respondent’s
facility, engaged in protected concerted activities, that the Respondent had
knowledge of these activities and had animus against Lopez and the Union, and
that there was a nexus between Lopez’ protected activities and the Respondent’s
adverse action against her.5 The
judge additionally found that the Respondent had failed to rebut the case
against it. Thus, the judge found that the Respondent violated Section 8(a)(3)
and (1) by discharging Lopez. We find
that the record supports the judge’s findings and that the Respondent’s
exceptions lack merit.
The Respondent faults the judge’s reliance on Director of Nursing Julie Huffman’s testimony in finding that, on February 25, 2007, Lopez was in the dining room assisting residents with breakfast during the 9 to 9:15 a.m. timeframe. However, the judge relied on the credited testimony of employees Melissa Wilson and Jessica Palko, as well as that of Huffman, in making this finding. Moreover, we agree with the judge that Huffman’s testimony supported this finding. Huffman testified that she was summoned from her office due to the argument in the dining room. It is undisputed that this argument involved Lopez and another employee, Diana Keith. Huffman testified that, when she arrived at the dining room, Lopez was no longer there, so Huffman went to the timeclock and found that Lopez had clocked out. At this point, she testified, “It was about 9:15. She [Lopez] clocked out at 9:18.” Thus, it is established that (1) the argument involving Lopez in the dining room was underway before Huffman was summoned, (2) after being summoned, Huffman went from her office to the dining room and from the dining room to the timeclock, and (3) at that point, it was “about 9:15 a.m.” (according to Huffman’s own testimony). Given that some time must have elapsed, even if only a brief period, between the start of the argument in the dining room and the point at which Huffman arrived at the timeclock, the judge fairly found that Huffman’s testimony supported a conclusion that Lopez was in the dining room before 9:15 a.m.
Accordingly, we
affirm the judge’s decision and adopt his recommended Order.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Camelot
Terrace, Inc.,
Dated,
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Charles Muhl, Esq., for the General Counsel.
Michael Lerner, President, Pro Se, for the Respondent.
Stephanie Brinson, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
Statement of the Case
I recommended the dismissal of the other allegation in the
complaint regarding employee Crystal Lopez.
However, the Board found that the complaint allegation that the Respondent,
violated Section 8(a)(3) and (1) of the Act by discharging employee Crystal
Lopez turned on disputed facts and significant credibility issues that were not
adequately resolved for their review.
The Board further found that I failed to articulate a basis for many of
my credibility determinations and did not address evidence that arguably
contradicted a number of my factual findings.
The Board held that they were accordingly unable to fulfill their review
function. Therefore, the Board severed
and remanded the complaint allegation regarding the alleged unlawful discharge
of Lopez to me for reasoned credibility resolutions and for findings of fact that detail the evidence supporting my factual
findings and either discredit or reconcile the evidence that contradicts those
resolutions and factual findings. The
Board cited specific examples in its order.
I shall address them in this Supplemental Decision. Other than as explained herein, I adopt the
detailed factual statement of my previous decision and find it unnecessary to
set forth the facts contained in that decision.
In the description set forth below, I have to an extent paraphrased the
Board’s remand directive. I have
thoroughly and carefully reviewed all record evidence and am addressing the
credibility concerns raised by the Board in the same sequence set out in the
Board’s Order. All of the witnesses at
the hearing gave the appearance of the certainty of their testimony. I find nothing in the demeanor of the
witnesses that either enhanced or detracted from their credibility in my prior
decision or in this supplemental decision.
I am thus unable to make any credibility resolutions based on the
demeanor of the witnesses.
This case involves an incident wherein Respondent’s employees
certified nurses aide (CNA) Crystal Lopez and CNA Jessica Palko were assisting
patients with eating their breakfast in the dining room. They were joined by housekeeping aide Melissa
Wilson who came to assist them. At that
point Lopez was charting the patients’ appetites using a clipboard. They were joined by housekeeping aide Diana
Keith and an argument ensued concerning the assignment of housekeeping
hours. Lopez became upset and threw down
the clipboard and left. According to
Keith, Lopez said, “Fuck it, I quit” and left.
Lopez, Palko, and Wilson all testified that Lopez did not use this
expletive and did not say she quit.
Lopez then went to her van on the parking lot where she was joined by nurse
May Nelson. Lopez told Nelson she did
not know if she could continue to work there.
Director of Nursing (DON) Julie Huffman then called on Nelson to come
inside because of the cold weather as Nelson had recently been in the
hospital. Nelson came back into the
facility and was followed by Lopez.
Huffman testified that Lopez said she thought things would get better,
but they had not and that she quit.
Lopez testified she said, “Well, I’m going back to work” and did so and
did not quit. Lopez went back to work
and worked the remainder of her shift.
On the next day Lopez did not return to work because of illness and
talked to Respondent’s administrator, Marna Anderson, on the telephone.
The Utterance of an Expletive and a Statement “I Quit”
The Board found that I relied solely on Diana Keith’s testimony and failed to discredit or otherwise address the testimony of witnesses Jessica Palko and Melissa Wilson or of Lopez herself, each of whom testified that Lopez neither said she quit nor issued an expletive on February 25, 2007.
Chronology of Key Events Relating to Lopez’
Discharge
Remains Unclear
I credited the testimony of Charge Nurse Noreen Hayes that she saw Lopez and Palko leave on break at 9 a.m. and return at 9:15 a.m. However, the testimony of Director of Nursing Julie Huffman, Lopez, Palko, and Wilson puts Lopez in the dining room assisting residents with breakfast during this same timeframe.1
Both Lopez and Palko specifically denied they were on break between 9 and 9:15 a.m. The Board found that I failed to reconcile this conflicting evidence and to explain why I was crediting one account over the other.
Other Instances Where I Failed to Adequately
Address
Conflicts in the Evidence
The Board found, for example, that I found that Lopez left the building after her argument with Keith and upon her return which was at approximately 9:30 or 9:35 a.m. wrote “9:18 a.m.” over her sign-out time of 9 a.m. in the break log and “9:30 a.m.” over her sign-in time of 9:15 a.m. In so finding, I credited Hayes’ testimony. The Board found that my account of Hayes’ testimony is inaccurate in a potentially significant respect. Hayes testified that it was at 9:18 a.m. that Lopez wrote 9:18 a.m. over her sign-out time of 9 a.m. in the break log. If this is so, it significantly conflicts with the Respondent’s version of the events, that Lopez had quit, left the building, then changed her mind and, upon returning to the building around 9:30–9:35 a.m., made entries in the break log to make it appear that she had been on break.
Failed to Address Certain Discordant Findings and
Evidence
Pertinent to His Conclusion that Lopez Voluntarily Quit
The Board found that on February 26, Administrator Marna Anderson told Director of Nursing Huffman that Lopez had been discharged, but that I did not reconcile this finding with my ultimate conclusion. Nor did I address Lopez’ testimony that she was told by Respondent’s observer at the February 28 election that she had been terminated or her testimony that when she tried to report for work on that day, Anderson told her that she had been terminated. The Board found that I apparently credited Huffman’s testimony that Lopez told Huffman that she quit upon her return to the building on February 25.2 The Board further found that it is undisputed however, that immediately thereafter, Lopez completed her work shift and that I did not explain why Lopez would have told Huffman that she quit and then immediately resume working.
On review of the record in this case and the chronology of
events, I find that the testimony of Charge Nurse Noreen Hayes is
implausible. It is clear that Lopez and
Palko were not on break during the 9 to 9:15 a.m. time period. I find it significant that Respondent’s director
of nursing, Huffman, testified that after going to the dining room she observed
Palko feeding patients and Wilson standing there but did not see Lopez. Huffman testified she then went to the timeclock
about 9:15 a.m. and specifically observed that Lopez had clocked out at 9:18
a.m. This puts Lopez and Palko in the dining
room in the 9 to 9:15 a.m. timeframe.
Implicit in this testimony of Huffman is that Lopez was in the dining
room until about 9:15 a.m. This
testimony of Huffman is supported by the testimony of
Upon further review, I credit the testimony of Lopez that she had told Huffman that she was going back to work after returning from a break that she had taken in her van wherein, she expressed to nurse May Nelson that she did not know if she could continue working at Camelot because people were yelling at her. However, Lopez testified that she did not say she was quitting and I credit her testimony. I find, with respect to the testimony of Huffman that Lopez did not say she was quitting but that she was going back to work. It is undisputed that Lopez did return to work and worked the remainder of her shift. I find it is implausible that Lopez would tell Huffman she was quitting and then immediately return to work. Respondent did not call nurse May Nelson to testify.
Huffman testified that when she informed Administrator
Anderson on the next day (February 26), that Lopez had quit,
With respect to these contentions by the Respondent, I
find that the record shows that Respondent was grasping at any opportunity to
justify its discharge of Lopez. I find
on reconsideration of the alleged falsification of the break log that the
testimony of Director of Nursing Huffman and the testimony of Lopez, Palko, and
Wilson is credible and establishes that the discussion in the dining room took
place at some time between 9 and 9:15 a.m.
Keith did not testify concerning the timing of the incident. I further find, that the testimony of Charge
Nurse Noreen Hayes that she had signed out Lopez and Palko at 9 a.m. for their
break and subsequently signed them both back in from their break at 9:15 a.m.
is not credible. I specifically find
that Hayes’ testimony that Lopez signed herself back out for a second break at
9:18 a.m. over her breaktime of 9 to 9:15 a.m. is also not credible. Lopez’ timecard shows that she punched out at
9:18 a.m. and punched back in at 9:35 a.m.
This was the period when Lopez went out to her van to calm down after
the discussion in the dining room. I do
not credit Hayes’ testimony that Lopez and Palko went on break from 9 until
9:15 a.m. at those exact times and that she recorded these exact times based on
her observation of a clock.
Respondent’s Administrator, Anderson, testified that Lopez was also terminated because she “abandoned her patient when she left because they were in the dining room feeding people.” I find this assertion is not credible as it is undisputed that Lopez was not feeding patients but was charting patients’ appetites at the time of the incident as testified to by Lopez, Palko, Wilson, and Keith. I further find that Respondent’s contention that Lopez was a “no-call, no-show” is a pretext that Respondent has asserted to bolster its reasons for its discharge of Lopez. I credit the unrebutted testimony of Lopez that she called off on February 26, 2 hours in advance of the start of her shift and informed the midnight nurse that she would be off because she was ill, Respondent did not call the midnight nurse to contradict Lopez’ testimony which remains unrebutted. I find that Respondent’s various post hoc explanations were pretextual, Weldon, Williams & Lick, Inc., 348 NLRB 822, 826–828 (2006).
In my initial decision in this case, I found that Lopez
had uttered an expletive and quit her job.
In making this determination, I credited the testimony of Director of
Nursing Huffman and former housekeeping unit aide Keith and did not otherwise
address the testimony of CNA Palko and housekeeping aid
The General Counsel and counsel for the Charging Party
contend, and I find, that Respondent’s investigation was perfunctory and the
reasons for Lopez’ discharge were pretextual.
They cite Respondent’s introduction of additional justifications which
they contend were pretextual. They also
cite the failure to interview Lopez to obtain her side of the story and the
different method of interviewing Palko and Wilson who were supportive of Lopez’
position that she did not quit or utter an expletive. Palko and Wilson were not initially afforded
the opportunity to review their statements as they were taken by Huffman and
I find that the General Counsel has established a prima
facie case of a violation of Section 8(a)(3) and (1) of the Act by its
discharge of Crystal Lopez. Initially as
set out above, I have found that Lopez did not quit her job but was discharged
by the Respondent. I find that Lopez
engaged in protected concerted activities as the leading union supporter at
Respondent’s facility during the
Conclusions of Law
1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent violated Section 8(a)(3) and (1) of the Act by its discharge of Crystal Lopez.
4. The aforesaid action taken against Lopez, in connection with Respondent’s status as an employer, affects commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Remedy
Having found that the Respondent discharged Lopez in violation of the Act, it shall be recommended that Respondent cease and desist therefrom and take certain affirmative action, designed to effectuate the policies and purposes of the Act and post an appropriate notice. It is recommended Respondent rescind and expunge from its files the discharge issued to Crystal Lopez and immediately offer her reinstatement to her former position or to a substantially equivalent one if her former position no longer exists. Respondent shall make Lopez whole for any loss of backpay and benefits sustained as a result of its unfair labor practices. The backpay amount shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), at the “short-term Federal rate” for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended3
ORDER
The Respondent, Camelot Terrace, Inc.,
1. Cease and desist from
(a) Discharging its employees because of their engagement in protected concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the National Labor Relations Act.
2. Take the following affirmative actions to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order rescind the discharge of Crystal Lopez and offer her full reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent job without prejudice to her seniority or any other rights or privileges previously enjoyed, and expunge from its files the unlawful discharge.
(b) Make whole Lopez for any loss of earnings and other benefits suffered as a result of the discrimination against her with interest.
(c) 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 the records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix”4 at its facility in
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
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 discharge our employees because of their engagement in union and other protected concerted activities.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act.
We will, within 14 days from the date of the Board’s
Order, rescind the unlawful discharge of Crystal Lopez and offer her
reinstatement to her former job, or, if that job no longer exists, to a
substantially equivalent job, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
We will make her whole for any loss of earnings
and other benefits as a result of the discrimination against her, with interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge and we will, within 3 days thereafter, notify her in writing that this has been done and that the unlawful actions will not be used against her in any way.
Camelot Terrace, Inc.
1 Camelot Terrace, Inc., 353 NLRB No. 20.
2 In his decision, the judge also found that the Respondent violated Sec. 8(a)(3) and (1) by issuing warnings to and
discharging employee Cheryl Henson. The Board adopted this finding. The complaint allegation regarding Henson is
not before the Board at this time.
3 The Respondent has
excepted to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us that
they are incorrect.
4 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See New Process Steel, L.P. v. NLRB, ___ F.3d ___, 2009 WL 1162556 (7th Cir. May 1, 2009); Northeastern Land Services, Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009), pet. for rehearing denied (May 20, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, ___ F.3d ___, 2009 WL 1162574 (D.C. Cir. May 1, 2009).
5 Under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
the General Counsel bears the burden of showing that union animus was a
motivating or substantial factor for the adverse employment action. The elements commonly required to support
such a showing are union or protected concerted activity by the employee,
employer knowledge of that activity, and union animus on the part of the
employer. See, e.g., Consolidated Bus
Transit, Inc., 350 NLRB 1064, 1065 (2007);
1 Huffman was summoned to the dining room due to the altercation there, but Lopez was no longer present. Huffman then went to the timeclock and found Lopez had clocked out. At this point she testified, “it was about 9:15 a.m. She (Lopez) clocked out at 9:18 a.m.”
2 Huffman testified that Lopez, on her way into the building, told Huffman that she quit because “she thought it was going to get better but it had gotten worse.” The Board found that although not expressly finding that Lopez told Huffman she had quit, I found that Lopez told Huffman that she thought things would get better but they had not and Huffman accepted Lopez’ resignation at that point.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
4 If this Order is
enforced by a judgment of a