NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,553, CARDINAL HAYES-HOME FOR CHILDREN and NINA HOFFMAN., (Nov. 14, 1994), National Labor Relations Board, (Nov 14, 1994)

CARDINAL HAYES-HOME FOR CHILDREN and NINA HOFFMAN.

315 NLRB No. 74.Case No. 3-CA-18043. November 14, 1994 Joel P. Biblowitz, Administrative Law Judge..

Before Gould, Stevens and Devaney.

Discharges--Cause as Justification--Protected Activities.--The General Counsel failed to establish a prima facie case that an employee was discharged because of her concerted protected activities in suggesting that a union was necessary at an employer’s facility. The employee’s refusal to accept supervision constituted valid cause for her dismissal, the employer had no knowledge of the employee’s statements regarding the union and no knowledge of union activities and there was no evidence that the employer harbored antiunion animus. Section 8(a)(3).

Back reference: ¶4065.608.

From Text of Board’s Decision

We agree with the judge that the General Counsel failed to establish a prima facie case that employee Hoffman was discharged for union activities. The judge’s description of Supervisor Colich’s testimony regarding her knowledge of Hoffman’s union activity, however, contains contradictory statements. Thus, the judge stated that “[A]t no time prior to Hoffman’s termination was she [Colich] aware that Hoffman was attempting to start a union at the facility or was discussing the Union with her fellow employees” and then stated that “[Colich] testified that two other employees told her that Hoffman told them that she felt that the employees needed a union or that she was trying to start a union at the facility.”

Our review of the record shows that Colich testified that, during the July 9, 1993 meeting, she told Hoffman that Hoffman should not be complaining to the staff but should take her complaints to the personnel department. Later in this meeting, Hoffman said that her concerns were not being met and that she thought that maybe a union was needed at the facility. This was the first time that Colich heard anything about a union and Colich did not respond to Hoffman’s statement. Following the July 9 meeting, Colich’s supervisor told Colich to talk to the employees and find out what Hoffman’s complaints were about how the Respondent was treating the residents because the Respondent is required by law to investigate all allegations of resident abuse. While Colich was talking to employees, two of them told her that Hoffman had mentioned that she thought that the facility needed a union and that Hoffman would like to start a union.

Also contrary to the judge’s finding, Busby, the director of resident services, testified that Colich told him about Hoffman’s July 9 statement that she thought maybe a union was needed at the facility.

It is clear from a review of the record, that although Busby knew about Hoffman’s statement to Colich on July 9 (maybe a union was needed at the facility), only Colich knew that Hoffman had mentioned a union to other employees. Further, Amorello, who made the decision to terminate Hoffman, had no knowledge of any statements regarding a union and no knowledge of any union activities. Under all of the circumstances of this case, including the fact that the judge found no evidence of union animus and found that Hoffman’s behavior leading up to her discharge established that she refused to accept supervision, we agree with the judge that the General Counsel has failed to establish a prima facie case that Hoffman was discharged because of protected concerted activities.