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,
Extendicare Health Services, Inc. d/b/a River’s
Bend Health and Rehabilitation Service and
American Federation of State, County and Municipal Employees, AFL–CIO,
Local 913.
Case 30–CA–16746–1
June 29, 2007
DECISION
By Chairman Battista and Members Schaumber and Walsh
On June 29, 2005, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent filed exceptions, a supporting brief, an answering brief, and a reply brief. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions[1] and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.
This case involves allegations of violations of Section
8(a)(1) and (5) arising in the context of the parties’ negotiations for an
initial collective-bargaining agreement.
The judge found that the Respondent violated Section 8(a)(1) in the
following three respects: (1) threatening employees with termination if they engaged
in a strike, “regardless of whether or not the strike was lawful;” (2)
soliciting employees to report the protected activities of other employees to
the Respondent; and (3) threatening employees with discipline if they engaged
in protected activities. The judge
dismissed the complaint allegation that the Respondent violated Section 8(a)(5)
by increasing the cost of employee meals without prior notice to the
For the reasons stated by the judge, we affirm his dismissal of the 8(a)(5) allegation. For the reasons stated below, we reverse the judge’s findings of three violations of Section 8(a)(1). Accordingly, we shall dismiss the complaint in its entirety.
i. facts
The facts, set forth more fully in the judge’s decision, can be summarized as follows.
The Respondent operates nursing homes throughout the
On January 15, the Union sent a letter to the Respondent
and the Federal Mediation and Conciliation Service (FMCS), informing them that
the
Between January 15 and 21, Candy Gremore, the Respondent’s administrator, received a report from an employee that she had been threatened that she would have to go on strike “or else.” Gremore reported the threat to Liz Reiss, the Respondent’s regional director of operations.
On January 21, Reiss sent a letter to the employees, stating in pertinent part as follows:
It is your decision whether or not to go on strike. What the
Some employees are telling us they are being harassed and
threatened because they don’t want to go on strike. We will not tolerate any River’s
ii. analysis
A. Alleged Threat of Termination If Employees Engaged in a Strike
The judge found that the Respondent’s statement that the hiring of replacements “puts each striker’s continued job status in jeopardy” constituted a threat of termination in violation of Section 8(a)(1). We disagree.
Eagle Comtronics,
263 NLRB 515 (1982), cited by the judge, is the leading case defining the
extent of an employer’s obligation, on informing employees that economic
strikers may be replaced, to provide an accurate summary of employee rights
under Laidlaw.[4] The Board held that “an employer does not violate the Act by truthfully
informing employees that they are subject to permanent replacement in the event
of an economic strike.”
The Board’s holding in Eagle
Comtronics was premised on Section 8(c) of the Act, which “permits an employer
to make predictions about the consequences of union representation, provided
its remarks are not accompanied by a threat of reprisal or force or promise of
benefit.” Unifirst Corp., 335 NLRB 706, 707 (2001). As such, absent accompanying threats, Eagle Comtronics “articulates the
Board’s policy of resolving in the employer’s favor any ambiguity occasioned by
a failure to articulate employees’ continued employment rights when informing
them about permanent replacement in the context of an economic strike.”
Applying these principles here, we find that the Respondent’s statement did not constitute an unlawful threat. Significantly, the Respondent did not say that replaced strikers would permanently lose their jobs. Instead, the Respondent stated that the hiring of replacements “puts each striker’s continued job status in jeopardy.” This statement is entirely consistent with Laidlaw and therefore lawful. If, at the conclusion of an economic strike, the strikers’ positions are filled by permanent replacements, the employer is legally justified in not reinstating the strikers under Laidlaw and its progeny.[6] In a very real sense, then, the hiring of permanent replacements places strikers’ “job status in jeopardy” because when the strike ends they may not have a job to which they can immediately return. Instead of working and earning a paycheck, they must wait for a vacancy to arise in their prestrike position or a substantially equivalent position.[7] Moreover, because the Respondent’s statement about “job status” was not accompanied by any threats, any ambiguity in it must be construed in the Respondent’s favor. Unifirst Corp., supra.
Contrary to our dissenting colleague’s contention, it is immaterial that the Respondent did not provide employees with a detailed explanation of the Laidlaw doctrine. As stated above, Eagle Comtronics expressly holds that an employer is under no obligation to “explicate all the consequences of being an economic striker,” so long as its “statements on job status after a strike are consistent with the law.” 263 NLRB at 516. That is precisely the situation here.
Indeed, in subsequent cases, statements similar to the one
in issue here have been found to be permissible. For example, in Novi American, 309 NLRB 544 (1992), the Board found that it was
unobjectionable for an employer to state that “striking employees can be
replaced by permanent replacements, and may not have a job when the strike is
over.” The Board held that the employer
“did not threaten that, as a result of a strike, employees would be deprived of
their rights in a manner inconsistent with those in Laidlaw.”
Additionally, in John W. Galbreath & Co., 288 NLRB 876, 877 (1988), the Board found that it was unobjectionable for the employer to advise employees that “strikers can lose their jobs[;] . . . [h]owever, they are not discharged, technically speaking. But they’re not working . . . .” The Board reasoned that “the statement may leave some employees puzzled about how economic strikers can return to work, but it does not imply that they are discharged.”
The cases relied on by the judge and the dissent are
distinguishable because in each one the employer exceeded the scope of
permissible speech delineated in Eagle
Comtronics by threatening employees with permanent job loss. See the discussion in fn. 5, above. Thus, in Wild
Oats Markets, Inc., 344 NLRB No. 86, slip op. at 24–25 (2005), the employer
stated that “when Unions go on strike, .
. . many have lost their jobs because striking workers are replaced.” Similarly, in
Based on all of the above, we find that the Respondent did not threaten that, as a result of a strike, employees would be deprived of their rights in a manner inconsistent with Laidlaw. Therefore, the Respondent’s statement was lawful under Eagle Comtronics. Accordingly, we reverse the judge’s finding that the Respondent unlawfully threatened the employees with job loss in violation of the Act.
B. Alleged Solicitation of Employees to Report the Protected Activities of Other Employees
As stated above, the judge also found the following portion of the Respondent’s January 21 letter to be unlawful:
Some employees are telling us they are being harassed and
threatened because they don’t want to go on strike. We will not tolerate any River’s
According to the judge, employees receiving the letter could reasonably believe that the Respondent was asking them to report to management protected union activity that they viewed as unwelcome. We disagree.
As stated above, before sending the January 21 letter to
employees, the Respondent received a report from an employee that she was told
that she must go on strike “or else.”
Thus, in this case, there is evidence that an employee actually had been
threatened. Under similar circumstances,
the Board has held that an employer may lawfully assure employees that it will
not allow them to be threatened by anyone and that it may ask them to report
such threats.
Therefore, we now turn to the Respondent’s request that
employees report instances of harassment.
In Lutheran Heritage
Village-Livonia, 343 NLRB 646, 646–647 (2004), the Board held that in
determining whether an employer’s maintenance of a work rule is unlawful, the
Board will give the rule a reasonable reading and refrain from reading
particular phrases in isolation. Under
this standard, the Board first looks to “whether the rule explicitly restricts activities protected by Section 7.”
In Stanadyne Automotive Corp., 345 NLRB No. 6, slip op. at 2–3 (2005), the Board applied the Lutheran Heritage standard to an employer statement prohibiting “[h]arassment of any type.” The Board found initially that the statement did not explicitly restrict protected activity. Under the three-factor test set forth above, the Board further found that employees would not reasonably construe the statement to prohibit Section 7 activity, nor was the statement promulgated in response to protected union activity. Rather, the employer issued the statement in response to unsolicited reports it received of unprotected conduct during an organizational campaign. Finally, the statement was not applied to restrict the exercise of Section 7 rights. Accordingly, the Board concluded that the employer’s statement did not violate Section 8(a)(1).
Applying the Lutheran Heritage standard here, we find that the Respondent’s January 21 letter did not explicitly restrict activity protected by Section 7. As we stated in Lutheran Heritage, “some instances of harassment are not protected by the Act.” 343 NLRB at 648. Therefore, a request that employees report instances of harassment to management is not tantamount to a request that employees report protected activity.[11]
Under the three-factor test described above, we find, first, that employees would not reasonably construe the Respondent’s January 21 letter as requesting reports on the protected activities of other employees, particularly where, as here, the Respondent assured employees in the letter that “[i]t is your decision whether or not to go on strike.” In addition, the Respondent described its concern as the limited one of ensuring that all employees “can continue to work in a non-threatening environment.” Giving the Respondent’s letter a reasonable interpretation and reading it as a whole, we cannot find that employees would reasonably construe the Respondent’s message as requesting reports on conduct protected by Section 7.
Second, contrary to the dissent, the Respondent’s January 21 letter was not promulgated in response to protected union activity. Rather, as in Stanadyne, supra, the Respondent issued the letter in response to unprotected conduct (the employee who complained to management that she had been threatened that she must go on strike “or else”).
Third, there is no evidence that the Respondent’s January 21 letter was applied to restrict the exercise of the employees’ protected conduct. Rather, as stated above, the evidence shows that the Respondent issued the January 21 letter in response to reports of unprotected conduct.
In conclusion, for all the foregoing reasons, we reverse the judge and find that the Respondent’s January 21 letter did not solicit employees to report the protected activities of other employees in violation of Section 8(a)(1).
C. Alleged Threat of Discipline If Employees Engaged In Protected Activities
Finally, the judge found that the portion of the Respondent’s January 21 letter analyzed in the preceding section also constituted a threat of unspecified disciplinary action in violation of Section 8(a)(1). The judge reasoned that employees inclined to engage in protected activities could reasonably believe that such activities might be reported to the Respondent and that they could be disciplined as a result. However, we have found, contrary to the judge, that employees would not reasonably construe the Respondent’s January 21 letter as requesting reports on the protected activities of other employees. Consequently, employees inclined to engage in protected activities would have no reasonable basis for believing that their conduct would be reported to the Respondent or that they would be disciplined as a result. Accordingly, we shall dismiss this complaint allegation as well.
ORDER
The complaint is dismissed.
Dated,
Robert J. Battista, Chairman
Peter
C. Schaumber,
Member
(seal) National
Labor Relations Board
Member Walsh, dissenting in part.
Relying on a rationale not advanced by the Respondent, the majority erroneously reverses the judge’s finding that the Respondent unlawfully threatened employees with termination if they engaged in a strike. The majority also errs in reversing the judge’s additional findings that the Respondent (1) unlawfully solicited employees to report the protected activities of other employees to management and (2) unlawfully threatened employees with discipline if they engaged in protected activities. For the reasons stated by the judge and the additional reasons set forth below, I would adopt the judge’s decision in its entirety.1
i. facts
The material facts are essentially undisputed. On January 1, 2004,2 the Respondent purchased the River’s
On January 15, the Union sent a letter to the Respondent
and the Federal Mediation and Conciliation Service (FMCS), informing them that
the
On January 21, the Respondent sent a letter to the bargaining
unit employees criticizing the
Specifically in issue are the following two paragraphs of the Respondent’s letter:
It is your decision whether or not to go on strike. What the
Some employees are telling us they are being harassed and
threatened because they don’t want to go on strike. We will not tolerate any River’s
The Respondent’s letter made absolutely no mention of any
legal deficiency in the
ii. analysis
A. The
Respondent Threatened Employees with Termination If They Engaged In a Strike
The complaint alleges that the Respondent’s statement that
the hiring of replacements “puts each striker’s continued job status in jeopardy”
constituted a threat of termination in violation of Section 8(a)(1). The judge found that the issue posed by this
complaint allegation was “complicated by the fact that the
The Respondent’s exceptions and supporting brief advance
only one narrow argument for reversing the judge’s unfair labor practice finding:
the Respondent’s January 21 statement that the hiring of replacements “puts
each striker’s continued job status in jeopardy” did not violate Section
8(a)(1) because it was made in the context of the Union’s threat to strike in
violation of the notice requirements of Section 8(g). According to the Respondent, the “January 21
letter unmistakably responded to the
The majority does not find merit in the Respondent’s limited contention. Instead, the majority makes a very different and much broader argument for the Respondent, i.e., that the January 21 letter did not violate Section 8(a)(1) when analyzed in the context of a threat to engage in a protected strike. This argument is conspicuously absent from the Respondent’s brief, which cites none of the cases relied on by the majority.
Like a court, the Board’s general practice is not to raise arguments on a party’s behalf. E.g., Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 837 (D.C. Cir. 1998) (“Our dissenting colleague . . . criticizes the Board’s case law. . . . Perdue, however, makes no such argument, and normally we do not address issues the parties fail to raise.”); Goer Mfg. Co., 341 NLRB 732 fn. 2 (2004) (“We find it unnecessary to address our dissenting colleague’s contentions because they were not raised by any party to this proceeding and are therefore not procedurally before the Board.”) (citing, inter alia, Avne Systems, Inc., 331 NLRB 1352, 1354 fn. 5 (2000) (“We recognize that Respondent Avne raised a 10(b) defense. Our point is simply that Respondent Avne did not make the dissent’s arguments in support of that defense.”)). The Board should exercise similar judicial restraint here and limit its review of the judge’s decision to the issues and arguments raised by the parties.4
As the majority has raised the broader issue, however, I
shall address it as well. In Eagle Comtronics, 263 NLRB 515 (1982),
the leading case in this area, the Board reviewed the Laidlaw rights of strikers with regard to reinstatement.5
The Board reiterated the principle that an employer does not violate the
Act by truthfully informing employees that they are subject to permanent replacement
in the event of an economic strike. The
Board held that an employer may address the subject of striker replacement
without fully detailing the protections enumerated in Laidlaw, “so long as it does not threaten that, as a result of a
strike, employees will be deprived of their rights in a manner inconsistent
with those detailed in Laidlaw.”
Here, the Respondent went beyond a mere announcement of its right to replace striking employees. The Respondent elaborated on the meaning of the phrase “to hire replacements.” This elaboration consisted of the Respondent’s statement that the phrase meant that each striker’s “continued job status” would be “in jeopardy.” In so stating, the Respondent implied that it was within its discretion to terminate its employment relationship with the strikers, thereby eliminating all rights to reinstatement. Under Laidlaw, however, the “continued job status” of replaced strikers is not “in jeopardy;” to the contrary, Laidlaw squarely holds that they “retain their status as employees” and that they have important rights to reinstatement upon the departure of the replacements. 171 NLRB at 1369–1370. In short, the Respondent’s statement constituted a threat that “as a result of a strike, employees will be deprived of their rights in a manner inconsistent with those detailed in Laidlaw.” Eagle Comtronics, supra, 263 NLRB at 516.
The majority attempts to justify the Respondent’s statement by arguing that, in a practical sense, the hiring of permanent replacements places strikers’ “job status in jeopardy” because when the strike ends they may not have a job to which they can immediately return, but must instead wait for a vacancy to arise. The problem with this explanation is that it was never offered to the employees. The January 21 letter told them only that in a strike “the Company would be forced to hire replacements” and this “puts each striker’s continued job status in jeopardy.” As the judge recognized, “an employee would reasonably interpret the January 21 letter as threatening employees with the loss of their jobs in the event of a strike. . . .”6
In sum, under Eagle Comtronics, the Respondent could have limited its remarks to the truthful statement that economic strikers are subject to permanent replacement. Instead, it went further and starkly raised the specter of job loss. In so doing, it crossed the line carefully drawn by the Board in Eagle Comtronics and thereby violated Section 8(a)(1).7
B. The Respondent Solicited Employees to Report the Protected Activities of Other Employees to Management
As stated above, the judge also found the following portion of the Respondent’s January 21 letter to be unlawful:
Some employees are telling us they are being harassed and
threatened because they don’t want to go on strike. We will not tolerate any River’s
The judge reasoned that employees receiving the letter could reasonably believe that the Respondent was asking them to report to management protected union activity that they viewed as unwelcome. The judge is correct.
“It is well settled that the Act allows employees to engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” Ryder Transportation Services, 341 NLRB 761 (2004), enfd. 401 F.3d 815 (7th Cir. 2005). Employers interfere with this right, and therefore violate Section 8(a)(1), “when they invite their employees to report instances of fellow employees’ bothering, pressuring, abusing, or harassing them with union solicitation . . . .” Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998). Such employer statements have the “potential dual effect of encouraging employees to report to Respondent the identity of union . . . solicitors who in any way approach employees in a manner subjectively offensive to the solicited employees, and of correspondingly discouraging . . . solicitors in their protected . . . activities.” Arcata Graphics, 304 NLRB 541, 542 (1991) (quoting W.F. Hall Printing Co., 250 NLRB 803, 804 (1980)).
Here, the Respondent asked employees to report to management if they were being “harassed” because they did not want to engage in a union-sponsored strike. “Harassment” is an “elastic” term that “may include protected . . . activity.” Bloomington-Normal Seating Co. v. NLRB, 357 F.2d 692, 697 (7th Cir. 2004). Nothing in the Respondent’s letter served to limit employees’ understanding of what constitutes harassment; employees reasonably could conclude that encouraging fellow employees to participate in an economic strike was tantamount to “harassment.” For these reasons, I would adopt the judge’s finding that the Respondent violated Section 8(a)(1) by soliciting employees to report the protected activities of other employees to management.
Relying on Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004), in which Member Liebman and I dissented, and Stanadyne Automotive Corp., 345 NLRB No. 6, slip op. at 2–3 (2005), in which Member Liebman dissented, the majority finds (1) that the Respondent’s January 21 letter was not promulgated in response to union activity, and (2) that employees would not reasonably construe the letter as requesting reports on the protected activities of other employees. The majority is wrong on both counts.
First, the Respondent’s letter states that the Respondent has received reports of employees being harassed “because they don’t want to go on strike.” Thus, the Respondent’s letter was expressly promulgated in direct response to union activity and violates Section 8(a)(1) under Lutheran Welfare for that reason alone.
Second, the Respondent’s letter states that it “will not
tolerate” harassment of any employee “for any reason.” This is essentially the same rule against
“[h]arassment of other employees, supervisors and any other individuals in any
way” in Lutheran Heritage, which I
would have found unlawful. As in Lutheran Heritage, nothing in the
Respondent’s letter limits the breadth of the prohibition. Thus, it would be reasonable for employees to
understand the prohibition as reaching protected (but unwelcome) union
solicitation. Such an overbroad prohibition
violates Section 8(a)(1) because it would reasonably tend to interfere with,
restrain, or coerce employees in the exercise of their Section 7 right to
solicit support for the
C. The Respondent Threatened Employees with Unspecified Discipline if They Engaged in Protected Activities
Finally, the judge correctly found that the portion of the Respondent’s January 21 letter analyzed in the preceding section also constituted an unlawful threat of unspecified discipline. The judge reasoned that employees inclined to engage in protected activities could reasonably believe that such activities might be reported to the Respondent and that they could be disciplined as a result. I agree with the judge’s analysis on this issue as well. Consequently, I would adopt his conclusion that the Respondent violated Section 8(a)(1) by threatening employees with unspecified discipline if they engaged in protected activities that other employees may subjectively regard as “harassment.”
Dated,
Dennis P. Walsh, Member
National
Labor Relations Board
Ryan E. Connolly, Esq., for the General Counsel.
Cynthia K. Springer, Esq. (Baker &
Daniels), of
DECISION
Statement of the Case
Arthur J. Amchan, Administrative Law
Judge. This case was tried in
The General Counsel
alleges that Respondent, Extendicare Health Services, Inc., violated Section
8(a)(1) of the Act by coercing employees regarding support for the Union by
issuing a Memorandum on January 2, 2004, stating that employees had no
obligation to pay union dues. The General Counsel also alleges that Respondent
violated Section 8(a)(1) by issuing a letter to unit employees on January 21,
2004, threatening them with termination if they engaged in a strike;
threatening unspecified discipline if employees engaged in protected activity
and soliciting employees to report the protected activities of other employees
to management. Finally, the General Counsel alleges that Respondent violated
Section 8(a)(5) and (1) by increasing the cost of employee meals without prior
notice to the Union and without affording the
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following
Findings of Fact
i. jurisdiction
Respondent,
Extendicare Health Services, Inc., d/b/a River’s Bend Health and
ii. alleged unfair labor practices
Alleged 8(a)(1) violations
For a number of year prior to January 1, 2004, the Union has represented a bargaining unit that includes full-time and regular part-time certified nurse aides/nursing assistants/med techs/restorative aides, housekeepers, laundry aides, dietary aides, activities aides, office clericals, and cooks, at Respondent’s Manitowoc facility. On January 1, 2004, Respondent became the owner of this facility.
The
Until a new contract between Extendicare and Local 913 is
negotiated, there is no Union contract at River’s
It is unknown how long it will take to negotiate a contract with Local 913. It is likely it could take several months . . . .
On January 15, 2004, Neil Rainford, the union staff representative
servicing Respondent’s Manitowoc facility, sent a notice to Respondent and the
Federal Mediation and Conciliation Service (FMCS), informing them that the
Union may picket, strike, or engage in other concerted refusal to work. His
letter stated that “the above-referenced activities may commence on or after
January 29, 2004.” Respondent’s counsel sent a letter to Rainford on January
19, opining that Section 8(g) of the Act required the
On January 21, 2004, Liz Reiss, Respondent’s regional director of operations sent a letter to employees, which set forth Extendicare’s position on the merits of the Union’s strike notice. The letter stated in pertinent part:
Dear Employee:
On January 16, 2004, the
It’s important when you think about whether going on
strike is a good idea, you look at all the facts . . . . Yet the
. . . The Union is pushing you to go on strike even though
the Company responded to every one of
the
It is your decision whether or not to go on strike. What
the
Some employees are telling us they are being harassed and
threatened because they don’t want to go on strike. We will not tolerate any
River’s
In a letter dated January 19, but transmitted to
Respondent on January 28, the
Alleged 8(a)(5) violation
Prior to May 2003, Respondent’s predecessor charged employees the follow amounts for meals: $1.75 for breakfast and supper; $2.25 for lunch. In May 2003, the prior management changed the prices to $2.25 for breakfast and supper; $3 for lunch.
On January 22, 2004, Respondent posted a notice (R. Exh. 9) announcing that effective February 16, 2004, all three meals would cost employees $3. Respondent did not give the Union prior notice of this change, nor did it offer to bargain about the change.
On April 30, 2004, upon being notified by the Regional Office that it was filing a complaint in this matter, Respondent notified employees that it would agree to rescind the January increases. On May 11, 2004, Extendicare rescinded the increase and offered employees reimbursement for any breakfast or supper meals purchased at the $3 rate after February 16. On May 14, Respondent reimbursed CNA Susan Hagenow $2.25 for amounts paid for three breakfast or supper meals.
Analysis
Compliant Paragraph 7: Alleged coercion in informing employees that they had no obligation to pay union dues.
I dismiss complaint paragraph 7 on the grounds that the General Counsel did not establish that Respondent’s employees had any obligation to pay union dues. Therefore, there is no evidence that Respondent’s assertion, that they had no such obligation, was false. Whether there was such an obligation may turn on the provisions of the Union’s constitution and bylaws, which are not in the record, Andal Shoe Inc., 197 NLRB 1183 (1972). Moreover, the General Counsel’s only witness, Union Staff Representative Neil Rainford, testified that he did not know whether or not Respondent’s assertion was accurate.
Given the fact that Respondent’s statement has not been shown to have been false, I conclude that it has not been established that it is coercive or violative of Section 8(a)(1).
Alleged Threat of Termination in the Event of a
Strike
(Complaint Paragraph 8 (b)(i))
The Board has, in a number of cases, addressed the issue of the degree of detail required of an employer, who informs employees that they are subject to replacement in the event of an economic strike. In Eagle Comtronics, Inc., the Board held that an employer may address the subject of striker replacement without fully detailing the reinstatement rights set forth in Laidlaw Corp., 171 NLRB 1366 (1968), so long as it does not threaten that, as a result of a strike employees will be deprived of their rights, such as the right to be reinstated if and when their permanent replacements are terminated. A statement, such as the one made by Respondent, that the hiring of replacements “puts each striker’s continued job status in jeopardy,” would therefore violate Section 8(a)(1) if the employer’s comments were made in the context of a threatened economic strike, Kentucky River Medical Center, 340 NLRB 536, 546–547 (2003); Wild Oats Markets, Inc., 344 NLRB No. 86, slip op. at 24–25 (2005); Superior Emerald Park Landfill, LLC, 340 NLRB 449, 462 (2003).
The issue in the
instant matter, however, is complicated by the fact that the Union’s strike
notices of January 15 and 19, did not comply with the requirements of Section
8(g) of the Act, as interpreted by the Board in Alexandria Clinic, P.A., 339 NLRB 1262 (2003). In that case, the
Board held that the health care employer was entitled to terminate nurses who
engaged in a strike 4 hours later than the time specified in the
The General
Counsel, however, argues that Respondent’s January 21 letter, violates Section
8(a)(1) because the threat to employees’ “continued job status” is not tied to
the inadequacy of the Union’s strike notice and is broad enough to encompass
lawful strike activity. Given the fact that there is no evidence that employees
receiving the January 21 letter were aware of the shortcomings of the
Alleged Solicitation of Employees to Report the Protected Activities of Other Employees to Respondent and Threat of Unspecified Disciplinary Action (Complaint Pars 8(b) (ii) & (iii))
It is well settled that the Act allows employees to engage in persistent union solicitation and other protected activity, including encouraging fellow employees to engage in an economic strike, even when it annoys or disturbs the employees who are being solicited. To that end Respondent’s invitation to employees to report to management if they are being “harassed or threatened for any reason” is violative of Section 8(a)(1). Employees receiving Respondent’s January 21, 2004 letter could reasonably believe that Respondent was asking them to report any unwelcome union activity, Ryder Transportation Services, 341 NLRB 761 (2004). Additionally, those inclined to engage in lawful union activity could reasonably have been discouraged from doing so. These employees could reasonably believe that their lawful activities might be reported to Respondent and that they could be subjected to discipline as a result, Arcata Graphics, 304 NLRB 541, 542 (1991).1 I therefore find that Respondent violated Section 8(a)(1) as alleged in complaint paragraphs 8(b)(ii) and (iii).
Alleged Section 8(a)(5) violation: change in employee meal prices (Complaint paragraph 9)
I dismiss complaint paragraph 9 on the grounds that assuming that Respondent violated Section 8(a)(5), it cured this violation by posting the memoranda of April 30 and May 7, and by reimbursing the only employee who paid the extra 75 cents for meals.
On April 30, 2004,
Respondent posted a memo entitled “Unfair Labor Practices.” The memo stated
that the NLRB had rejected the
On May 7, Respondent posted another memo entitled “Meal Prices.” The memo stated:
We have been advised by the Regional Director for the National
Labor Relations Board that River’s
The General Counsel
argues that Respondent has not cured the violation because it failed to meet
all the criteria set forth in Passavant
Memorial Area Hospital, 237 NLRB 138 (1978). Recently, in Claremont Resort & Spa, 344 NLRB No.
105 (2005), two of the three current Board members stated that they “do not
necessarily endorse all the elements of Passavant.”
In any event, by its terms the Passavant
decision indicates that what an employer must do to cure a violation may depend
on the nature of the violation. The
Passavant case concerned a threat, which was communicated to 30–40
employees, that they would be fired if they engaged in an economic strike. In
such a case, the Board found that repudiation must be (1) timely, (2) unambiguous,
(3) specific to the coercive conduct, and (4) free from other prescribed illegal
conduct. The Board distinguished the facts in Passavant from those in Kawasaki
Motors Corp., USA, 231 NLRB 1151, 1152 (1978). In
I conclude that
given the relatively minor importance of the 75 cent price increase,
Respondent’s April 30 and May 7 memoranda are sufficient to cure the violation
of Section 8(a)(5) despite the fact that the repudiation does not completely
accord with the Passavant criteria
with regard to timeliness and lack of ambiguity. Moreover, I find that the
memoranda, at least implicitly, concede that the price increase violated the
Act due to Respondent’s failure to bargain with the
Summary of Conclusions of Law
Respondent’s January 21, 2004 letter to employees violated Section 8(a)(1) of the Act, as alleged in paragraphs of 8(b)(i), (ii), and (iii) in threatening employees with termination if they engage in a strike, regardless of whether or not the strike was lawful; soliciting employees to report the protected activities of other employees to Respondent and threatening employees with unspecified discipline if they engage in protected activities that other employees may subjectively regard as “harassment.”
Remedy
Having found that the Respondent 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.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2
ORDER
The Respondent, Extendicare Health Services, Inc., d/b/a
River’s Bend Health and
1. Cease and desist from
(a) Threatening employees with termination if they engage in a lawful strike;
(b) Soliciting employees to report to Respondent information regarding the protected activities of other employees;
(c) Threatening employees with unspecified discipline if they engage in protected activities which are subjectively regarded as “harassment” by other employees.
(d) 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 after service by the Region, post at its
(b) 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.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
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 threaten you with termination if you engage in a lawful strike.
We will not solicit employees to report to us the protected activities of other employees.
We will not threaten you with unspecified discipline if you engage in protected activities that other employees may subjectively regard as “harassment.”
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.
River’s