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,
Bryant Health Center, Inc. and Teamsters Local Union No. 92, General Truck Drivers and Helpers
affiliated with the International Brotherhood of Teamsters. Cases 9–CA–43747 and 9–CA–44012
January 30, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On August 18, 2008, Administrative Law Judge John T. Clark issued the attached decision.[1] The Respondent filed exceptions and a supporting brief. The General Counsel filed limited cross-exceptions and an answering brief. The Respondent filed an answering brief and a reply brief.
The National Labor Relations Board[2] 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 as modified and set forth in full below.[4]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth in full below,
and orders that the Respondent, Bryant Health Center, Inc.,
1. Cease and desist from
(a) Maintaining overly broad rules prohibiting solicitation and distribution in its personnel policy addendum.
(b) Maintaining an overly broad confidentiality rule
prohibiting employees from discussing their salary, performance appraisals, and
wage increases with other employees.
(c) Telling employees that they cannot discuss their
performance appraisals, wage increases, and discipline with other employees.
(d) Threatening employees with discipline and discharge if
they discuss their performance appraisals and wage increases with other employees.
(e) Creating the impression that the employees’ union activities
are under surveillance.
(f) Discharging employees for
discussing their discipline or other terms and conditions of employment with
other employees.
(g) 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) Notify all employees in
writing that the overly broad rules prohibiting solicitation and distribution
contained in the personnel policy addendum are rescinded, void, of no effect
and will not be enforced. Further notify
all employees in writing that the Respondent will not prohibit employees from
soliciting and distributing material in a manner protected by the Act.
(b) Notify all employees in
writing that the overly broad confidentiality rule contained in a memorandum
dated October 1, 2007, prohibiting employees from discussing their salary,
performance appraisals, and wage increases with other employees, is rescinded,
void, of no effect and will not be enforced.
Further notify all employees in writing that the Respondent will not prohibit
employees from discussing their salary, performance appraisals, wage increases,
and discipline with other employees in a manner protected by the Act.
(c) Furnish all current
employees with inserts for the current edition of the personnel policy addendum
that (1) advise that the unlawful solicitation and distribution rules have been
rescinded, or (2) provide the language of lawful provisions; or publish and
distribute to all current employees a revised personnel policy addendum that
(1) does not contain the unlawful rules, or (2) provides the language of lawful
rules.
(d) Within 14 days from the date
of the Board’s Order, offer Christina Cox 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.
(e) Make Christina Cox whole for
any loss of earnings and other benefits suffered as a result of her unlawful
discharge in the manner set forth in the remedy section of the decision.
(f) Within 14 days from the date
of the Board’s Order, remove from its files any reference to the unlawful discharge,
and within 3 days thereafter notify Christina Cox in writing that this has been
done and that the discharge will not be used against her in any way.
(g) 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.
(h) Within 14 days after service
by the Region, post at its facility in
(i) 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,
Wilma B. Liebman,
Chairman
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 maintain overly broad rules prohibiting solicitation and distribution in the personnel policy addendum.
We will not maintain an overly broad confidentiality rule prohibiting you from discussing your salary, performance appraisals, wage increases, or other terms and conditions of your employment with other employees.
We will not tell you that you cannot discuss your performance appraisals, wage increases, discipline, and other terms and conditions of your employment with other employees.
We will not threaten you with discipline and discharge if you discuss your performance appraisals, wage increases, discipline, and other terms and conditions of your employment with other employees.
We will not create the impression that your union activities are under surveillance.
We will not discharge or discipline you for discussing your discipline or other terms and conditions of your employment with other employees.
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 notify you in writing that the overly broad rules prohibiting solicitation and distribution contained in the personnel policy addendum are rescinded, void, of no effect and will not be enforced, and that we will not prohibit you from soliciting and distributing material in a manner protected by the Act.
We will notify you in writing that the overly broad confidentiality rule contained in the memorandum dated October 1, 2007, prohibiting you from discussing your salary, performance appraisals, and wage increases with other employees, is rescinded, void, of no effect and will not be enforced, and that we will not prohibit you from discussing your salary, performance appraisals, wage increases, discipline, and other terms and conditions of your employment with other employees in a manner protected by the Act.
We will furnish you with inserts for the current edition of the personnel policy addendum that (1) advise that the unlawful solicitation and distribution rules have been rescinded, or (2) provide the language of lawful provisions; or publish and distribute to all current employees a revised personnel policy addendum that (1) does not contain the unlawful rules, or (2) provides the language of lawful rules.
We will within 14 days from the date of the Board’s Order, offer Christina Cox 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 Christina Cox whole for any loss of earnings and other benefits suffered as a result of her unlawful discharge, less any net interim earnings, plus interest.
We will, within 14 days from the date of this Order, remove from our files any reference to the unlawful discharge of Christina Cox, and we will, within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way.
Bryant Health Center, Inc.
Linda B. Finch, Esq., for the General Counsel.
Ronald L.
Mason and Arron T. Tulencik, Esqs. (Mason
Law Firm), of
Rick
Kepler and Ronnie Cox, of
DECISION*
Statement of
the Case
John T. Clark, Administrative Law Judge. This case was tried in
The amended consolidated complaint alleges
that the Respondent’s supervisors and agents, at all material times, interfered
with, restrained, and coerced employees in the exercise of their rights
guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act
by: maintaining overly broad rules in its personnel policy regarding
solicitation and distribution, which, if violated could result in discipline;
telling an employee not to discuss her discipline with other employees; telling
employees not to discuss their performance appraisals with other employees;
threatening employees with discipline if they discussed their performance
appraisals and raises with other employees; threatening to reduce employees’
wages if they selected union representation by implying that a movie viewed by
the employees stated that wages could be reduced if they selected a union; and
creating the impression among its employees that their union activities were
under surveillance by the Respondent.
The amended consolidated complaint further alleges that the Respondent
violated Section 8(a)(1) and (3) of the Act when it discharged employee
Christina Cox on July 25 (Cox is also indentified as Kristina and Christine in
the record). The Respondent by its
answer denies any unlawful conduct. At
the outset of the hearing the Respondent’s attorney moved to amend the
Respondent’s answer to include an additional affirmative defense that Cox is a
supervisor within the meaning of Section 2(11) of the Act. The amendment was admitted over counsel for
the General Counsel’s objection.
On the entire record, including my observation
of the demeanor of the witnesses, and after considering the briefs filed by the
General Counsel and the Respondent, I make the following
Findings of
Fact
i. jurisdiction
The Respondent, a corporation, has been
engaged in the operation of a nursing home at its facility in
ii. alleged
unfair labor practices
A. Background
The Respondent’s facility is a 93-bed, long-term
care nursing home, managed by Omnilife Health Care Systems, Inc. The one-story building contains a corridor
that is divided into front and back “floors.”
The Respondent operates three shifts: the day shift, from 6 a.m. until 2
p.m.; the evening shift, from 3 to 10 p.m.; and the midnight shift from 10 p.m.
until 6 a.m. A licensed practical nurse
(LPN) and three state tested nursing aides (STNA) are assigned to each floor on
each shift. The LPN is responsible for
the overall care of the residents of that floor, as well as dispensing their
medications, as required. Some shifts
also have a “float nurse.” The LPN in
that position is responsible for administering injections and “treatments” to
the residents of both floors.
Robert Morris is the administrator of the
facility and been in that capacity since he was hired in January 2007. Morris is responsible for the overall
functioning of the facility. Deborah
Moore is his administrative assistant.
Laura Henson, a registered nurse (RN), has been the director of nursing
(DON), at the facility since 2006.
Henson, who was hired in 1992, has worked as an STNA, LPN, and “minimum
data set” coordinator (MDS). Teresa
McClain is the assistant director of nursing (ADON). The Respondent admits that Henson and McClain
are supervisors within the meaning of Section 2(11) of the Act. The Respondent contends that the LPNs are
also supervisors within the meaning of the Act.
B. Supervisory Status of the Licensed Practical Nurses
Section 2(11) of the Act provides:
The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
This provision is to be read in the
disjunctive; thus, “[a]n individual need possess only one of the enumerated
indicia of authority in order to be encompassed by Section 2(11), as long as
the exercise of such authority is carried out in the interest of the employer,
and is not of a merely routine or clerical nature but requires the use of independent
judgment.” The burden to prove
supervisory authority is on the party asserting it. Oakwood
Healthcare, Inc., 348 NLRB 686,
687–688 (2006). The party seeking to
prove supervisory status, here the Respondent, must establish it by a
preponderance of the evidence. Dean & Deluca New York, Inc., 338
NLRB 1046, 1047 (2003).
The Employer contends that the LPNs exercise
supervisory authority under Section 2(11) of the Act in “assigning” and “responsibly
directing” STNAs in the performance of their duties, as well as the authority
to discipline them for failing to perform their assigned duties. The Respondent also contends that the LPNs
also have the authority to adjust grievances.
These contentions are addressed below.
1. Assignment of STNAs
Oakwood Healthcare, supra, the Board interpreted the term “assign” as referring to “the act
of designating an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or overtime period),
or giving significant overall duties, i.e., tasks, to an employee.” 348 NLRB at
689.
The Respondent does not currently have written
job descriptions for the LPN and the STNA positions. (Tr. 552–553.) The previous job descriptions were not
offered into evidence, assuming they still exist. Accordingly, the following is based on
testimony. Rebecca Pancake has worked as
an LPN for the Respondent for over 3 years.
She credibly testified that she has a daily morning meeting with the
STNA’s who are assigned to work with her.
She tells the STNAs the room numbers and they are responsible for feeding,
bathing, dressing, and walking the residents in those rooms that are unable to
perform those functions by themselves.
The number of rooms assigned to an STNA is determined by the number of
STNAs working on that floor. That number
of STNAs working on the floor is usually the same, as are the room
assignments. Although there are
generally three STNAs assigned to an LPN there is no contention that the LPN
has any input into the number or the identity of the STNAs assigned to work
with the LPN.
Pancake acknowledged that the STNAs generally
take care of the same rooms, and the same residents. In addition to the daily tasks set forth
above, the STNA performs sporadic tasks, such as preparing a resident for a
visit to the doctor. These tasks are
scheduled in advance by other personnel and the information is conveyed to the
STNA by the LPN. During the morning
meeting the LPN usually assigns the same STNAs to the same rooms, and then
conveys any resident specific information to the STNA. Roxanne Sudderth is a former employee who
resigned to be a caretaker for her mother.
She worked for the Respondent as an STNA on two occasions, the last from
2003 to 2008. She credibly testified
that most of the time the STNAs knew what had to be done when they arrived at
work. Similarly, Betsy (Tammy) Workman,
who has worked as an STNA for the Respondent for over 13 years, credibly
testified that “We usually know our duties when we come in.” (Tr. 243.)
Teresa Harmon, an STNA with the Respondent for 10 years, acknowledged
that the tasks that STNAs perform are routine.
Most of the Respondent’s witnesses said that
they continued to assign tasks to the STNAs throughout the workday. When asked to provide specific examples,
their answers were not impressive. Wes
Jackson has been employed as an LPN by the Respondent for approximately 15
months. After being asked to give
examples of assignments he made throughout a typical day he said:
Depends on what happens throughout the day. If certain residents need certain things, you know, we’ll direct them to, you know, take care of certain needs of the residents or, you know, passing ice, which is part of the routine but, you know, if certain residents need certain things we will direct them to go do them. [Tr. 392.]
LPNs do not assign breaks (Tr. 447–449). If overtime is required the LPN must select
an STNA from a “mandate list,” that is prepared by Moore, the administrative
assistant to Morris. The Respondent
requires that an STNA selected from the mandate list work the overtime.
Morris testified in a general manner that he “observed”
a situation in which an STNA was running behind and asked the LPN for
help. The LPN went to the other STNAs
and made adjustments. He also observed
that if an STNA was absent in the back, the two LPNs would get together and
share a person. Morris testified that
that if a resident needs care an LPN would find somebody whether it was “their
assigned person or not.” Morris also
avers that the LPNs were exercising their own independent judgment and
discretion when he observed the foregoing.
(Tr. 620–622.) I find that Morris’
observations are far too generalized and conclusory to be of significant probative
value.
In Oakwood
Healthcare, supra, the Board found that in a health care setting the term “assign”
encompasses the responsibility to assign aides to particular patients. The Board characterized the matching of a
patient’s needs to the skills and special training of a particular health care
worker as “critical” to an employer’s ability to successfully provide health
care services. 348 NLRB at 689. In contrast to the charge nurses in Oakwood Healthcare, who took “into
account employee skill or the nature or severity of the patient’s conditions,”
when making assignments, in this case there is no substantive evidence that the
LPNs ever matched a resident’s needs with the “skills and special training” of
an STNA. (
Pancake credibly testified that before there
was a mandate list for overtime she would ask for volunteers, if there were no
volunteers the STNAs would “draw numbers out of a hat.” (Tr. 513.)
I find this testimony both instructive and consistent with how LPNs went
about assigning tasks to STNAs. The
evidence in this case establishes that the assignment process is more akin to
that of the lead persons in Croft Metals,
Inc., 348 NLRB 717 (2006), then to that of the charge nurses in Oakwood Healthcare. In Croft
Metals, decided the same day as Oakwood
Healthcare, the Board applied the Oakwood
Healthcare analytical framework to
the occasional switching of tasks among employees by the lead person. The Board found that the reallocating of work
in those circumstances was not a “designation of significant overall
duties . . . to an employee, but “more closely resembles an
‘ad hoc instruction that the employee perform a discrete task.’”
2. Responsible direction of STNAs
In Oakwood
Healthcare, the Board interpreted the phase “responsibly to direct” as
follows: “If a person on the shop floor has men under him, and if that person
decides what job shall be undertaken next or who shall do it, that person is a
supervisor, provided that the direction is both ‘responsible’ (as explained
below) and carried out with independent judgment.” Oakwood
Healthcare, supra at 690 (internal quotations omitted). The Board then held that for direction to be “responsible,”
the person directing the performance of a task must be accountable for its performance. Further, the Board held that to establish accountability,
“it must be shown that the employer delegated to the putative supervisor the
authority to direct the work and the authority to take corrective action, if
necessary. It must also be shown that
there is a prospect of adverse consequences for the putative supervisor if
he/she does not take these steps.”
The Respondent has established that the LPNs
have authority to direct the STNAs. All
of the LPNs testified generally that they had authority to direct the STNAs and
that they exercised that authority daily.
LPN Lisa Harmon credibly testified that she directs STNAs to search for
residents who may have wandered away from the area, “turn” residents who are
bedridden, and to clean and change residents who are incontinent. LPN Jackson testified that he verbally
counseled an STNA for failing to empty the trash in a resident’s room. The Respondent also entered four “Personnel
Action” forms given to STNAs by LPNs for being careless in the performance of
their duties. (R. Exhs. 8–11.)
Although the record contains sufficient
evidence to establish that the LPNs “direct” the STNAs within the meaning of
the definition set forth in Oakwood
Healthcare, the Respondent has not established that the LPNs are held
accountable for the actions of the STNAs.
The Respondent relies on the testimony of Pancake and
Notwithstanding the foregoing, I am mindful
that the Respondent specifies “not acting as a supervisor” on the Cox discharge
form, based on a July 21, 2007 incident.
Pancake was also counseled for failing to act as supervisor as a result
of that incident. Those actions are discussed below.
3. Adjusting grievances
The Respondent contends that the LPNs have
authority to resolve complaints and grievances brought to them by the
STNAs. Lisa Harmon testified, without elaboration,
that the grievances concerned “simple things.”
Pancake testified, without specificity, that she would take a “major
thing” to the DON or the ADON.
Thus, the Respondent has only established that
the LPNs have authority to resolve personality conflicts and even then there is
no evidence that the resolution is long term or that it is binding on
management. The Board has held that the
authority to resolve personality conflicts or “squabbles” between employees
does not warrant an inference sufficient to establish supervisory status. Ken-Crest
Services, 335 NLRB 777, 779 (2001), and cases cited. Additionally, Jackson’s testimony that he resolves
the conflicts by—“switching them out”—does not establish the use of independent
judgment in resolving the conflicts. Network Dynamics Cabling, 351 NLRB 1423,
1425 (2007). According, I find that the
LPNs do not possess authority under Section 2(11) to adjust grievances.
4. Authority to discipline
The Respondent argues that the LPNs are
supervisors based on their alleged authority to discipline the STNAs. The LPNs have authority to complete a form
entitled “Personnel Action.” Immediately
under that heading is the statement, “The following warning or separation was
issued today and it is to be made part of the official record.” A space for the employee’s name is followed
by two columns of broad categories of offenses.
Next to each category is an area that should be marked to indicate the
appropriate offenses. Beneath the
columns is a space to “Set forth all facts in detail,” this area is followed by
signature lines for the supervisor, employee, and witness, with additional
lines for employee and “facility” comments.
There is no specific place to date the document. The forms are available at both LPN
stations. At some point after 2006 (R.
Exhs. 2–5, 8–9), the form was changed.
(Tr. 288; R. Exhs. 6, 10–11.) The
statement quoted above is contained in the current form.
The Respondent relies heavily on
A discipline system is set forth in the
Respondent’s personnel policy addendum, dated January 2003 (GC Exh. 4 at
6). It contains examples of conduct that
may result in discipline. The examples
are not meant to be exclusive or all-inclusive.
The introduction cautions that although the policy contains progressive
levels of disciplinary action, there may be circumstances when discipline is
imposed that is different than the stated progression levels. The statement concludes that “the progression
of disciplinary action is not mandatory, and the facility may implement
discipline at any level as the facility deems appropriate under the
circumstances.” The document then lists
examples of minor, major, and intolerable offenses. At the bottom of each list is a statement of
consequences. A minor offense subjects
an employee to a written or verbal warning.
Two such violations constitute a major offense. An employee who commits a major offense is
subject to a suspension of up to 3 days.
Two violations in that category constitutes an intolerable offense. Commission of an intolerable offense subjects
an employee to immediate dismissal.
In Bon
Harbor, supra, the LPNs used preprinted disciplinary action reports to
state the specific rule that was violated, describe how the rule was violated,
and indicate the disciplinary action.
The LPN had to choose from among the following disciplinary options:
first notice, second notice, final notice, discharge warning, or
discharge. The preprinted form used by
the Respondent characterizes the action as either a warning or a separation. Because LPNs have no authority to layoff,
suspend, or discharge employees, there is no choice. Moreover, the evidence demonstrates that “warning”
is an inaccurate term. Nothing in the
documents “warn” of any negative consequences, let alone of “increasingly
severe punishment” for continued transgressions. Each exhibit merely memorializes an incident
where the STNA either failed to perform a task or failed to perform a task
satisfactorily.
None of the forms contain recommendations. The failure to recommend discipline cannot be
attributed to “first offenses.” Sheraton Universal Hotel, 350 NLRB 1114,
1116 fn. 4 (2007). STNA Teresa Harmon
was issued a personnel action form for carelessness on an unknown date in 2006
or earlier, she was issued a second personnel action form for carelessness on
May 15, 2006, and she was issued a third personnel action form for carelessness
on January 24, 2008. Pancake testified
that she believes that the forms remain in the employees personnel folders
forever. The fact that the Respondent
did not produce any evidence indicating an appropriate level of discipline for
any previously recorded discipline, establishes that the personnel action forms
are not a basis for future disciplinary action, nor do they impact on the STNAs
job status.
Based on the foregoing I find that the
Respondent has failed to prove that the completion of the personnel action
forms indicates supervisory status. Ken-Crest Services, 335 NLRB 777 (2001)
(distinguished in Progressive
Transportation Services, 340 NLRB 1044, 1046 fn. 7 (2003), because no warnings were in evidence that referred
back to the previous warnings).
The secondary indicia of supervisory status
offered by the Respondent cannot be considered in the absence of evidence that
the LPNs possessed any of the enumerated categories of authority in Section
2(11) of the Act. E.g., Palagonia Bakery Co., 339 NLRB 515, 535
(2003).
Accordingly, I conclude that the Respondent
has not met its burden of proof that the LPNs are supervisors within the meaning
of Section 2(11) of the Act.
C. The 8(a)(1) Allegations
1. No-solicitation/no-distribution rule
The complaint alleges that since about 2003,
the Respondent has maintained the following rules in its personnel policy
which, if violated, employees may be disciplined.
The rules provide:
5. Soliciting or collecting contributions for any purpose whatsoever, on company time, in the work place.
. . . .
8. Distribution of literature, written or printed matter of any description on company time or in work areas, not incidental to company. [GC Exh. 4, at 6.]
The Respondent also maintains an associate
handbook. The General Counsel contends
that the fact that the handbook contains a valid
no-solicitation/no-distribution rule does not cure the fact that the rules in
the addendum, set forth above, are overly broad. Moreover, there is no evidence that the Respondent
has ever indicated to the employees that the rules in the addendum should be
read in conjunction with the rule in the handbook.
The Respondent does dispute that the rules set
forth in the addendum are overly broad. Lutheran Heritage Village-Livonia, 343
NLRB 646, 646 fn. 5 (2004), and cited case; Laidlaw
Transit, Inc., 315 NLRB 79, 82 (1994); see also Hospital Pavia Perea, 352 NLRB 418 (2008). The Respondent argues that the “policy”
regarding solicitation and distribution is articulated in the handbook and not
in the addendum. The addendum merely
provides the classification of policy violations for the violations listed in
the associate handbook and the supplementary policies in the personnel policy
addendum. (R. Br. at 47.) The personnel policy addendum referenced by
the Respondent is the personnel policy addendum that is addressed above in
section 4, Authority to discipline. (GC
Exh. 4 at 6.)
The Respondent notes that although the
handbook directs the reader to the addendum on numerous policies it does not do
so regarding solicitation and distribution.
The Respondent points to section 4, page 6 of the handbook. Page 6 is the last page of the “Standards of
Conduct” section. That section begins on
page 5, and it contains examples of conduct that could result in discipline and
discharge. Solicitation and distribution
is not included in the examples, but the examples are not “all inclusive.” In fact, the reader is directed to the “facility
specific addendum for additional information on these issues.” In the “facility specific addendum” between
the introduction (set forth above in section 4, authority to discipline) and
the list of offenses, is the heading “Employee Rules and Regulations for
An addendum must, perforce, come after the
document to which it is added. As such,
it could be argued that it supersedes that document. At the very least, the Respondent’s two pronouncements
create confusion among employees concerning what is permitted, and the
confusion itself has the effect of unlawfully discouraging employees from
engaging in the protected activity. See Farr Co., 304 NLRB 203, 215 (1991) (employer
that maintained an unlawful no-solicitation policy in its handbook, did not
avoid liability by issuing a memorandum containing a lawful policy, since “legal
confusion” would result even if the employees knew of both policies). Additionally, it is well settled that any
ambiguity is construed against the promulgator of the rule. Lafayette
Park Hotel, 326 NLRB 824, 828 (1998),
enfd. mem. 203 F.3d 52 (D.C. Cir. 1999); Norris/O‘Bannon, 307 NLRB 1236, 1245 (1992).
Accordingly, I conclude that the Respondent’s
solicitation and distribution rules set forth above violate Section 8(a)(1) of
the Act.
2. Rules
prohibiting employees from discussing wages
and evaluations with other employees
The Respondent distributed the employees’
written evaluations sometime in September 2007.
In its answer, the Respondent admits, and I find, that Laura Henson, the
DON, orally instructed employees not to discuss their performance appraisals
with other employees. The amended
complaint also alleges that Teresa McClain, the ADON, during that same time
period, orally instructed employees not to discuss their performance appraisals
with other employees. Based on the credited
testimony of STNA Mary Spencer I find that complaint allegation proven. The Respondent defends by arguing that the
rule was announced to prevent employees from getting “hurt feelings,” that
would lead to an interruption of “patient care.”
Counsel for the General Counsel counters by
citing Alaska Ship & Drydock, 340
NLRB 874, 874 (2003), where the Board found that prevention of “hurt feelings,”
was not a sufficient justification to ban wage discussions. Counsel for the General Counsel opines that that
Alaska Ship & Drydock, is indistinguishable
from this case. I agree in part with
that statement but I also believe that the Respondent’s justification based on
alleged “patient care,” must be addressed.
In determining whether an employer’s
maintenance of a work rule reasonably tends to chill employees in the exercise
of their Section 7 rights, the Board applies the analytical framework set forth
in Lutheran Heritage, above. The first inquiry within that framework is “whether
the rule explicitly restricts
activities protected by Section 7.”
(Emphasis in original.) The Board
has held that the discussion of wages and evaluations constitutes protected
concerted activity. In this case there
is also a correlation between the wage rate and the evaluation (GC Exh.
5). St.
Margaret Mercy Healthcare Centers, 350
NLRB 203, 204 (2007) (then Chairman Battista dissenting, another issue, id. at
206), enfd. 519 F.3d 373 (7th Cir. 2008).
Once it is established that the Respondent’s rule adversely affects the
employees’ Section 7 rights it is incumbent on the Respondent to demonstrate
that a legitimate and substantial business justification outweighs the
employees’ Section 7 right. For the following
reasons I find that the Respondent has not established the legitimacy of the
rule and even if it had, I would find that the rule is overbroad in its application.
Morris and Henson testified that the rule
barring discussion between employees about their evaluations was premised not
on experience but on an expectation. After
reading the evaluations they “felt” that the employees would discuss the evaluations
and that some would “probably” be upset.
Henson believed that when the employees learned of the variance in the
evaluation scores they would become upset and discuss “these things” where
patients, families, and doctors would hear the conversation and cause conflict
among the whole group. Morris said that
he did not want people to be upset while “they’re at work.”
A fair reading of the testimony shows that “patient
care” was not mentioned or alluded to during their discussion regarding the
employees’ evaluations. Nor did they
consider other eventualities, such as what to do about employees who became upset
from just reading their own evaluation.
Although they agreed to order the employees not to discuss the
evaluations, there is no evidence that they ever considered telling the employees
the reason for the order. Moreover,
neither conveyed their concerns to the LPNs, the Respondent’s alleged front
line supervisors.
When asked what happened after the evaluations
were distributed, Henson references unidentified LPNs who reported to her that
STNAs were “bickering” like school kids in the hallway. Henson submits that patient care “was going
to go downhill so we had to step in and do something.” Henson continues, once again relying on
anonymous LPNs, who “were hearing it too.”
They sought her out “for guidance as to what they should do about having
[the STNAs] not discuss this out in the hallway.” What Henson did was to wait until Morris
arrived. They agreed to “call a meeting
and talk to these people.” Henson’s
conduct in September, directly contravenes her actions, only 2 months before,
in July. Then Henson supported McClain’s
discharge of Cox for “improper conduct” because Cox did not act as a
supervisor. Cox failed to tell an STNA
that the topic about which the STNA was speaking—the clothes the DON wore to
work—was not appropriate for a public area.
Pancake, who was present, was given counseling notes because she did “not
enforce to these fellow employees that this discussion was inappropriate and
needed to be stopped.” Here, no
discipline was issued to any LPN for their failure to prevent the STNAs from
discussing their evaluations. Moreover,
based on the testimony regarding adjusting grievances (sec. II,B,3), it appears
that bickering among STNAS is not unusual.
It also appears that “switching them out” is an effective corrective action. I find Henson’s statements in support of the
ban on employee discussion of evaluations to be contradictory and inconsistent
with her previous actions and other credited testimony.
The meeting was held and the witnesses agree
that Morris threatened the employees with discharge or discipline if they
continued to discuss their evaluations.
None of the employee witnesses testified that Morris placed any
qualifications on where the employees could discuss their evaluations. No witness corroborated Morris’ testimony
about giving examples of how he would not tell anyone his score, or how it
would look if a family arrived to visit their parent and saw the STNAs talking
around the desk about evaluations while their parent was sitting in a “mess.”
The complaint also alleges that Morris
threatened the employees with discipline if they discussed their raises with
other employees. The only testimony on
this matter was given by STNA Minnie Kelly.
She testified that during the meeting Morris told the employees they
would be suspended or terminated if they discussed their raises “like with the
evaluations.” (Tr. 317.) Kelly is a creditable witness. Her testimony is not refuted and is somewhat
supported by the memo Morris posted on October 1, 2007, that is discussed
below.
Accordingly, based on Kelly’s testimony I find
that the Respondent violated Section 8(a)(1) by threatening employees with
discipline and discharge if they discussed their wages with other employees.
Henson gave STNA Teresa Harmon’s evaluation to
her. Harmon testified that Henson never
told her not to discuss the evaluation.
The next day Harmon discussed the evaluation with another employee and
was subsequently summoned to a meeting in the office with Morris, Henson,
Moore, and McClain. After admitting that
she talked about her evaluation, Morris told her to stop because it might hurt
somebody’s feelings. Harmon agreed. The Respondent does not dispute this
incident. STNA Spencer also testified
without refutation that McClain gave her the evaluation and told her, without
qualification or explanation, not to discuss it with anyone.
None of the STNAs testified that Henson
explained or qualified the absolute prohibition against discussing their evaluations
with other employees. In fact a close
reading of Henson’s testimony shows that she never said that she qualified the
prohibition. Her testimony is that she
and Morris agreed to prohibit discussion among the employees so that nonemployees
would not “hear what’s going on and cause conflict among the whole group.” (Tr. 579.)
Thus, she answered, “yes,” when asked, “[C]an you tell me then when the
evaluations were given was that instruction then given for them not to discuss
it.” (Tr. 579.) Even if I did credit Morris when he claims
that he told Henson to allow the employees to discuss the evaluations off
worktime, on break or lunch, or outside the building, it would do nothing to refute
the overwhelming credited evidence that the employees were never told of that
qualification.
In fact, I do not credit Morris when he claims
that he told Henson where the employees could discuss their evaluations and
where they could not. When Morris spoke
about this matter his normal loquaciousness disappeared and his words sounded
stilted. The second time he claims to
have addressed the qualification, when he was talking about the statements he
made during the employee meeting, he neglected to mention the qualification at
all. Only after being reminded by
counsel—“did you make any reference to where you wanted the conversation not to
occur or to occur—”does Morris claim that he mentioned that when he was giving
his “spiel” about finding a parent in a mess.
Based on the foregoing I find that the Respondent issued a blanket rule
prohibiting the employees from discussing their evaluations among themselves.
In addition to the foregoing, there is no
evidence that any patient/resident did not receive proper treatment for any
reason during this time period. There is
no credible evidence that any patient/resident or other nonemployee overheard
any STNAs discussing their evaluations. “There
is no evidence that the Respondent prohibited employees from discussing other
matters in the vicinity of patient’s rooms even though such conduct might have
a similar impact on patients.” St. Margaret
Mercy Healthcare Centers, 350 NLRB 203, 205 fn. 7 (2007).
On October 1, 2007, Morris issued a memo
announcing a wage increase. The memo
explicitly informs the employees that “[a]ll salary, performance appraisals
& increase information should be kept confidential and should not be
discussed among staff.” The memo explains
that because not everyone received the same increase “[p]lease be respectful to
other staff members and do not try to ‘compare’ salary information.” (GC Exh. 5).
Thus, “patient care” has been replaced by “confidentiality” and “hurt
feelings” by “respect.” Regardless of
the words, the explicit instruction remains the same—do not discuss among yourselves,
at any time, or place,—anything that has to do with your wages.
The Respondent’s confidentiality rule, like
the oral instructions issued by Henson, Morris, and McClain, is both explicit
and unlawfully overbroad. Double Eagle Hotel & Casino, 341
NLRB 112, (2004), enfd. 414 F.3d 1249 (10th Cir. 2005), cert denied 546
Accordingly, I conclude that the oral
instructions issued by Morris, Henson, and McClain, prohibiting employees from
discussing among themselves their evaluations, explicitly infringe on Section 7
rights and violate Section 8(a)(1) of the Act, as alleged. I also find that Morris threatened employees
with discipline if they discussed their evaluations and wage increases in
violation Section 8(a)(1). The
Respondent also violated Section 8(a)(1) when Morris, on October 1, 2007, by
memorandum to the employees, promulgated and maintained an overly broad
confidentiality rule prohibiting the employees from discussing their salary,
performance appraisals, and wage increases among themselves.
3. Impression of surveillance
Counsel for the General Counsel alleges that
the Respondent unlawfully created the impression that the employees’ union
activities were under surveillance when, on July 12, 2007, Morris followed
STNAs Sudderth and Spencer as they left the facility. A union meeting was scheduled for that
evening. As they left Sudderth testified
that Morris said, “[S]ee you all at the Union meeting.” Spencer testified that she heard Morris say, “[B]etter
hurry up and get down to the Union meeting.”
The Respondent did not cross-examine either of
the witnesses about this issue. The
record only contains a general denial from Morris that other than the
conversations he had after the movie, he never had “any other conversations
about the
I find that the Respondent violated Section
8(a)(1) of the Act by creating the impression that the employees’ union
activities were under surveillance when, on July 12, 2007, Morris told
employees that he knew they were going to a union meeting.
4. The threat of a wage reduction
Also on July 12, and immediately before the
incident set forth above, Morris showed the employees a movie about unionization. Neither the movie nor the conditions under
which it was shown are alleged as violations of the Act. When the movie ended STNA Betsy Workman asked
Morris, “I heard that our wages can go down to minimum wages.” Morris testified that he said, “[L]ike the
video tape just said that it was a collective bargaining type deal and the only
thing that was guaranteed were those minimum federal standards.” Workman claims his response was “it possibly
could.” When asked where she heard that
the wages could be reduced to minimum wage she replied “probably at the movie.” After counsel asks “had you heard it before
that time, though?” Workman said that
she had heard an anonymous rumor, but that she was worried about it. When asked if she recalled any other
questions she replied, “I’m sure there’s a lot, but I don’t recall.” (Tr. 232–233.)
The discriminatee, Christina Cox, also
addressed this matter. She claims that
Workman asked Morris “about a statement that was made in the movie about
bumping our wages back to minimum wage during negotiations and he said
yes, . . . . or he said it just said so in the movie.” Cox also acknowledges that she was also aware
of rumors about wages being reduced to minimum wage before seeing the
movie. (Tr. 85.)
Former employee Sudderth also spoke about this
allegation. She initially stated that
Workman asked the question before the movie was shown. She claims that Workman asked, “[I]s it true
that we could go back to minimum wage if we joined the
I discredit the General Counsel witnesses for
the following reasons. Sudderth’s “mistake”
certainly indicates, at the very least, a faulty memory regarding this
event. In addition, she alone avers that
Morris attributed the decrease in wages directly to joining a union. Thereby articulating a textbook violation of
the Act. I do not credit Sudderth’s
testimony about this incident. I find
her memory to be unreliable, her testimony inconsistent with the other witnesses,
and I believe it is probably fabricated.
Workman and Cox were both concerned about the rumors. They may have viewed the movie through a
prism of their own preconceived beliefs, or at the least, were distracted by
their concern about a wage reduction.
Cox, during cross-examination, states that the movie basically said, “that
our wages could be bumped back down to minimum wage during negotiations.” She admits that is not a quote. I find that her statement is neither a quote,
nor is it accurate. Such a statement—that
merely engaging in negotiations would result in a decrease in wages—is a clear
violation of the Act. As such, if
accurate, it would seem that the showing of the movie would have been included
as part of the complaint. I find her
testimony to also be unreliable.
Workman did not ask anything about the movie,
unions, or negotiations, her question focused wages. Morris testified that he referenced the movie
in response to her question. He credibly
testified that there was a part of the movie where the narrator suggests that
in negotiations the only issue a union can guarantee is the Federal minimum
wage rate. I credit his testimony that
he responded to Workman’s question with a paraphrase of what was said in the
movie. I also find that Workman was
testifying to the best of her recollection and understanding. She probably did not understand what was said
in the movie, or she would not have asked the question. Morris, paraphrasing what was said in the
movie, most likely added nothing to her understanding. The understanding that Workman came away with
was that her wages “probably could” be reduced to the minimum wage. Her understanding, however, is not fact.
I find additional support for crediting Morris
in the testimony of Spencer. Spencer
appeared to be a truthful, unbiased witness.
She did not recall any statements made by Morris regarding reduced wages
as a result of unionization, but she averred that had a statement of that kind
been made she would have remembered it.
I credit the testimony of Morris about this incident.
Reviewing Morris’ statement it appears to be
an accurate statement identifying the lowest lawful wage rate that could be negotiated
between an employer and a union. As such
the statement reflects an economic reality, albeit remote, of the bargaining
process and does not violate the Act. International Baking
Accordingly I recommend that paragraph of the
complaint be dismissed.
D. The 8(a)(1) and (3) Allegations
Cox was hired as an LPN by the Respondent in
2005. Thereafter, she resigned and was
rehired in 2006 and was discharged on July 25, 2007. Beginning about June 2007 Cox engaged in
conversations with other employees about getting a union to represent
them. The employees were unhappy with
their wages, hours, and other terms and conditions of employment. Shortly after the conversations began the
employees asked Cox to contact the union and schedule a meeting for them to
meet with the union officials. Sometime
in late June the arrangements were finalized and the meeting was scheduled for
July 12 at 3 p.m. in a restaurant in
On July 6
The union meeting was held with three
employees in attendance.
1. The June 28 incident
Cox went to work on June 28 solely to review
the doctor’s orders that had been written for the month of July. This is done to ensure that any telephone
orders are placed in the main order log for the upcoming month. This task does not involve residents and is
done in a separate room. Cox wore torn
jeans and a T-shirt with a logo to work.
Henson told Cox that her attire was inappropriate. She became visibly upset and was crying. She stated that she was always being griped
at and picked on when she came to work to do the doctor’s orders. Cox had previously been told that flip flops
were not allowed to be worn in the facility.
Henson and Cox differ as to whether Henson
told Cox to leave, or Cox said she was leaving.
In any case as Henson was walking away, Cox requested that they talk in
Henson’s office. Henson said that they
could, if Cox calmed down. Cox complied. During the conversation in Henson’s office
Henson said that she was only giving Cox a verbal warning, a “heads up,” about
her attire because Morris was in the process of changing the dress code. At the end of the conversation Henson asked
Cox if she was okay to do the orders and Cox said she was. Henson told Cox to do the orders and not to
discuss the conversation about the dress code with anyone. Cox left and went to the room were the orders
were located. Pancake was doing orders
in the room. Pancake had overheard part
of the confrontation between Henson and Cox while they were in the hall. She asked Cox what happened and Cox said that
she was no longer allowed to wear jeans and a T-shirt to work. During this exchange the facility’s doctor
was also present, although he did not join in the conversation.
Discussion
Paragraph 6(a) of the complaint alleges that
the Respondent, by Henson violated Section 8(a)(1) when Henson orally instructed
Cox not to discuss her discipline with other employees. Based on the foregoing counsel for the
General Counsel submits that the Respondent established an overly broad confidentiality
rule. The Respondent does not contend
otherwise. It does argue that Henson’s
order was a one-time occurrence that was necessitated by the magnitude of the
task Cox was performing and the severe consequences that could result from an
error. It concludes that Henson’s
unarticulated reason for the complete prohibition was to prevent Cox from
getting “herself more upset later in the day” and making a crucial mistake
while doing the orders. I find Henson’s
testimony on this matter not supported by any evidence and unworthy of
belief. She did not tell Cox this was
the reason. There is no evidence that
she even once went to check on Cox. Nor
is there any evidence that Henson told Pancake, who was working along side Cox,
to be watchful of her emotional state.
Based on the foregoing I discredit Henson’s testimony on this matter and
reject the Respondent argument. See
generally Verizon Wireless, 349 NLRB 640,
657–658 (2007).
Accordingly, I find that the Respondent
maintained an overboard confidentiality rule when it prohibited the employees
from discussing their discipline among themselves and thereby violated Section
8(a)(1) of the Act, as alleged in the complaint.
2. The July 21 incident and the Cox discharge
On July 21 the employees were standing by the
timeclock waiting to clock out. The
group included Cox, Sudderth, Kelly, and Pancake. An STNA entered the area wearing short shorts
and a tank top. Members of the group
commented on the outfit. Kelly said that
she had seen Henson wearing a top that was not appropriate for work and that
she had told Henson as much. Cox stated
that she had “gotten in trouble” for wearing jeans and a T-shirt with a logo.
On July 25, Henson and McClain met with Cox in
their office. On arriving Cox was handed
a personal action form that was marked “failure to obey orders” and “improper
conduct.” (GC Exh. 2.) The form contained a written statement explaining
that Cox had told the group standing by the timeclock that she had gotten in
trouble for wearing jeans and a T-shirt “which she had been instructed by DON
not to discuss once she left the DON’s office.”
The order that Cox was discharged for violating is the unlawfully
overbroad confidentiality rule not to discuss her discipline with other
employees, described above, that violates Section 8(a)(1).
An employer’s imposition of discipline
pursuant to an un-lawfully overbroad rule constitutes a violation of the
Act. NLS
Group, 352 NLRB 744, 745 (2007), and cited cases. The Respondent’s contention that Cox was not
engaged in concerted activity at the time of her discharge is without
merit. E.g., see Rock Valley Trucking Co., 350 NLRB 69 (2007), and cited cases.
Accordingly, I find that the Respondent’s
termination of Cox pursuant to the unlawfully overbroad confidentiality rule violates
Section 8(a)(1) of the Act.
3. The 8(a)(3) theory
The complaint also alleges, and counsel for
the General Counsel argues, that the Respondent was motivated to discharge Cox
because of her union activity in violation of Section 8(a)(3).
The analytical framework for determining when
a discharge violates the Act was set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
Under Wright Line, the General
Counsel must first prove by a preponderance of the evidence, that the discharge
was motivated by the employee’s protected concerted activity. To carry the initial burden, the General
Counsel must show that the employee engaged in protected concerted activity and
that the Respondent knew of the activity.
The General Counsel also must establish that the activity was a
substantial or motivating reason for the employer’s action. Motive may be demonstrated by circumstantial
evidence. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). Thus, the timing of a discharge may support
an inference of discriminatory motivation.
Id at 1282. When an employer’s
stated motive for an action is found to be false, the circumstances may warrant
an inference that the true reason is an unlawful one which the employer seeks
to conceal. E.g., A–1 Portable Toilet Services, 321 NLRB 800, 806 (1996). If the General Counsel meets this burden, the
employer bears the burden of showing that the discharge would have taken place
even in the absence of protected conduct.
Wright Line, supra at
1089. See also Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996). Further, “[a]n employer cannot simply present
a legitimate reason for its actions but must persuade by a preponderance of the
evidence that the same action would have taken place even in the absence of the
protected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99
F.3d 1139 (6th Cir. 1996).
Discussion
The record establishes that Cox was the
primary employee union organizer. In
that regard she discussed unionization with other employees, contacted the
union on behalf of the employees, and scheduled the first organizing
meeting. She clearly was engaged in
protected concerted activity and it is admitted that the Respondent had
knowledge of her activities by July 6, 2007.
The unfair labor practices found above provide the requisite
animus. I also find inconsistent reasons
advanced for the discharge. Thus, Henson
testified, and the Respondent argues in brief, that the sole reason she told
Cox not to discuss their conversation was to prevent Cox from making an error
in the orders. Clearly, that was not a
concern at the time Cox was discharged for disobeying that order, and yet there
is no explanation forthcoming from the Respondent for this obvious inconsistency. Thus, I find that the reason offered by the Respondent
for the discharge, that Cox discussed her discipline with other employees, is
inconsistent with Henson’s testimony that the reason she ordered Cox not to
talk about the incident was to prevent Cox from making an error with the
orders. Accordingly, I find the
proffered reason is a pretext and as such provides additional evidence of
unlawful motivation. Based on the
foregoing I find that the General Counsel has met the initial burden.
I am aware that where the evidence establishes
that the reason given for the discharge is a pretext—that is the reason is
either false or was not in fact relied on—the Respondent fails by definition to
show that it would have taken the same action for those reasons, absent the
protected conduct. Golden State Foods Corp., 340 NLRB 382, 385 (2003) (citing Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982).
However, because the Respondent argues that the reasons for which Cox
was terminated occurred prior to its knowledge of her union activity, and that
the decision to discharge Cox was made before the Respondent acquired that
knowledge, I will address the Respondent’s arguments and the counsel for the
General Counsel response.
The Respondent’s Case
The Respondent contends that Morris and Henson
had decided to discharge Cox on June 29.
On that date an LPN unexpectedly resigned and had the Respondent
discharged Cox it would not have been in compliance with state nurse-to-patient
guidelines. The Respondent argues that
it had no choice but to delay the discharge until the LPN was replaced. The replacement LPN was hired on July 9. Morris testified that there is a 2 week
training period for new employees.
Morris claims that “from time to time” employees quit before the end of
the training period. Accordingly, the
Respondent decided to retain Cox until after the replacement LPN completed the
training period. The Respondent
concludes that Saturday, July 21 was the earliest that it could have discharged
Cox and remained in compliance with the guidelines. Henson does not work weekends and she
therefore planned to discharge Cox on Monday, July 23. When Henson arrived at work that day she
learned of the conversation at the timeclock regarding the dress code. The Respondent states that Henson she was
required to conduct an investigation.
The investigation took 2 days because some of the employees she needed
to interview were not scheduled to work.
On July 25, Cox was called to the office shared by Henson and
McClain. Both were present. Cox was handed a personnel action form and
told that she was terminated. Cox read
the form and observed that her discharge was not based on her nursing
duties. McClain said that there were
other reasons. Cox was upset and refused
to sign the form. She asked for, and
received, a copy of the form and was escorted from the facility.
The Respondent contends that Cox would have
been terminated regardless of her discussions about her discipline or her involvement
in the July 21 incident. Respondent
submits that the decision was made on June 29 for the reasons discussed by
Henson and Morris on that date. Morris
directed Henson to prepare a document memorializing the issues they had discussed
on June 29. (R. Exh. 12.)
The Respondent contends that Cox was
discharged based on incidents that occurred in June, before it had knowledge
that she was involved in the union organizing campaign. Henson used her personal computer to make a
list of the items she and Morris discussed on June 29. She made the list on July 1. She sent an e-mail, with the document
attached, to herself at work, the attached document is dated July 2. The subject of the e-mail is “ccox report to
Bob,” the heading of the attachment is “Concerns with work ethics up to this
date.” A summary of the document
indicates that: (1) the first and second items concern excessive use of her
cell phone on company time; (2) the next is leaving the facility while on break
without notifying a supervisor; (3) eating food from a resident’s tray; (4)
demonstrating a negative attitude toward coworkers; (5) refers in detail to the
dress code incident; (6) refers to a report that Cox was disrespectful to an
STNA; and (7) is a report that employees in housekeeping do not feel that Cox
cares for them and that they feel that she seeks them out to report them to the
administration.
The counsel for the General Counsel counters
that Henson admitted that neither she nor any other supervisor issued any discipline
to Cox for excessive use of her cell phone.
In fact Henson testified that only once did she tell Cox that she should
not be using her cell phone at the LPN desk.
Cox was not reprimanded for leaving the facility, having a negative
attitude, being disrespectful to an STNA or having an ax to grind against
employees in the housekeeping department.
I am mindful that neither the Board nor an
administrative law judge can substitute their judgment for that of the employer
and decide what constitutes appropriate discipline. Corriveau
& Routhier Cement Block v. NLRB, 410 F.2d 347, 350 (1st Cir. 1969),
citing NLRB v. Ogle Protection Service, 375 F.2d 497, 505 (6th Cir. 1967),
cert. denied 389
The subject of the e-mail is a “report.” A report generally contains information from
which a conclusion may be drawn.
Consistent with that view the heading of the report is Henson’s “concerns
with work ethics up to this date.” I
find that the language used indicates that the document is a work in progress. Consistent with this view is our the notes
Henson wrote regarding the investigation she was conducting about Cox being
disrespectful to an STNA. At the top of
the first page of the investigation is written “on 6/29/07.” The last entry is reportedly made “a few days
after the 6–29–07.” (R. Exh. 13.) Because Henson does not work on the weekend
the last entry may have been written as late as July 2 or 3. In which case the Respondent would have been
relying on an issue that was still under investigation as a basis for the
discharge. Additionally, as set for
above, the dress code incident is not the last item on Henson’s list. It is undisputed that the dress code incident
happened on June 28. The item regarding
the STNA appears to have come to Henson’s attention on June 29 and was still
under investigation as of July 2 or 3.
The matter concerning the housekeeping personnel was last on the list,
although there is no clue as to when that matter was reported.
Henson’s notes regarding the dress code
incident state that “later that day it was reported that [Cox] even explained
the events of the torn/ hole jeans to the doctor who visited the facility.” (R. Exh. 12 at bottom of 3.) There is no mention of any concern about
mistakes or that Henson took any action concerning the reported information.
I also note that the Respondent had not yet
availed itself of its progressive discipline system with regard to Cox. As Cox observed at her discharge meeting she
was not discharged because she was an incompetent LPN. Morris expressed concern about the abilities
and the commitment of the replacement LPN.
It would appear that under the circumstances the Respondent would be
better served by using progressive discipline in an attempt to change the
behavior of Cox rather than resorting to discharge.
I conclude from the foregoing that the
Respondent’s contention that it had made the decision to discharge Cox on June
29, is false. Based on the foregoing I
find that Morris and Henson were going to meet on July 2 to continue their
preliminary discussion regarding the continued employment of Cox, not to
discharge her.
That discussion was made moot by the
unexpected resignation of another LPN. I
do not agree, as argued by the Respondent that the Respondent “had no choice
but to postpone her termination in order that they would be in compliance with
state regulations. (R. Br. at 43.) Certainly if Cox was abusing the residents
the Respondent would not have postponed her discharge. Moreover, Morris did not testify that the
Respondent had no choice. He said the Respondent
would have had some issues with having enough LPNs to perform the work. He further explained that the guidelines
require that medications to be given to the residents within a certain
timeframe. He did not specify the
timeframe. I find that Cox was retained
because her transgressions were not related to her nursing duties, and that the
Respondent found it a matter of convenience and or economically advantageous to
postpone its decision regarding the fate of Cox. At least until it learned of her union
activity on July 6. Shortly thereafter
it took advantage of an innocuous statement by Cox as a way to rid itself of
the leading union proponent.
The final reason that I find that the
Respondent has not satisfied its burden to show that it would have discharged
Cox even in the absence of her union activity is because its conduct belies its
contention. The Respondent claims that
Henson was required to conduct an investigation of the facts surrounding what
was said by whom on July 21. The Respondent
offers not explanation as to why the investigation involved Cox. Henson admitted that she never interviewed
Cox. The record indicates that the
discharge probably took at the most no more than 30 minutes. The Respondent contends that Cox would have
been discharged Cox even in the absence of her union activity. But the Respondent offers no credible explanation
why it did not do so. Accordingly,
applying a Wright Line analysis, I
find that the Respondent has failed to persuade by a preponderance of the
evidence that it would have terminated Cox in the absence of her union and
protected concerted activity.
Based on the foregoing I find that the Cox
discharge violated Section 8(a)(1) and (3) of the Act, as alleged.
Conclusions of
Law
1. The Respondent, Bryant Health Center, Inc.,
is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By the following acts and conduct the
Respondent violated Section 8(a)(1) of the Act:
(a) By maintaining overly broad rules prohibiting
solicitation and distribution in its personnel policy addendum.
(b) By promulgating and maintaining an overly
broad confidentiality rule prohibiting employees from discussing their salary,
performance appraisals, and wage increases with other employees.
(c) By telling employees that they cannot
discuss their performance appraisals, wage increases, and discipline with other
employees.
(d) By threatening employees with discipline
and discharge if they discuss their performance appraisals and wage increases
with other employees.
(e) By creating the impression that the
employees’ union activities are under surveillance.
(f) By discharging employee Christina Cox for
discussing her discipline with other employees.
3. By the following act and conduct the Respondent
violated Section 8(a)(1) and (3) of the Act:
By discharging employee Christina Cox on July
25, 2007, because of her union and protected concerted activities.
4. The foregoing unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the Act.
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. The Respondent
having unlawfully discharged an employee, it must offer her reinstatement and
make her whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of 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). The General Counsel
seeks compound interest computed on a quarterly basis for any backpay awarded. Because the Board has consistently refused to
deviate from the standard remedy of simple interest, I am bound to follow the
current practice. Glen Rock Ham, 352 NLRB 516, fn. 1 (2008); J & R Roofing Co., 350 NLRB 694 fn. 1 (2007).
I shall also recommend that the Respondent
rescind its unlawful written rules and to notify all employees that it has done
so and that it will not prohibit employees from discussing the terms and
conditions of their employment in a manner protected by the Act.
On these findings of fact and conclusions of
law and on the entire record, I issue the following recommended2
ORDER
The Respondent, Bryant Health Center, Inc.,
1. Cease and desist from
(a) Maintaining overly broad
rules prohibiting solicitation and distribution in its personnel policy
addendum.
(b) Maintaining an overly broad
confidentiality rule prohibiting employees from discussing their salary,
performance appraisals, and wage increases with other employees.
(c) Telling employees that they cannot discuss
their performance appraisals, wage increases, and discipline with other employees.
(d) Threatening employees with discipline and
discharge if they discuss their performance appraisals and wage increases with
other employees.
(e) Creating the impression that the employees’
union activities are under surveillance.
(f) Discharging employees for discussing their
discipline with other employees or for engaging in union or other protected
concerted activities.
(g) 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) Notify all employees in writing that the
overly broad rules prohibiting solicitation and distribution contained in the
personnel policy addendum are rescinded, void, of no effect and will not be
enforced. Further notify all employees
in writing that the Respondent will not prohibit employees from soliciting and
distributing material in a manner protected by the Act.
(b) Notify all employees in writing that the
overly broad confidentiality rule contained in an memorandum dated October 1,
2007, prohibiting employees from discussing their salary, performance
appraisals, and wage increases with other employees, is rescinded, void, of no
effect and will not be enforced. Further
notify all employees in writing that the Respondent will not prohibit employees
from discussing their salary, performance appraisals, wage increases, and
discipline with other employees, in a manner protected by the Act.
(c) Furnish all current employees with inserts
for the current edition of the personnel policy addendum that (1) advise that
the unlawful solicitation and distribution rules have been rescinded, or (2)
provide the language of lawful provisions; or publish and distribute to all
current employees a revised personnel policy addendum that (1) does not contain
the unlawful rules, or (2) provides the language of lawful rules.
(d) Within 14 days from the date of the Board’s
Order, offer Christina Cox 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.
(e)
Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the
Christina Cox in writing that this has been done and that the discharge will
not be used against her in any way.
(f) 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.
(g) Within 14 days after service by the
Region, post at its facility in
(h) 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 maintain overly broad
rules prohibiting solicitation and distribution in the personnel policy addendum.
we
will not maintain an overly broad
confidentiality rule prohibiting you from discussing your salary, performance appraisals,
wage increases or other terms and conditions of your employment with other
employees.
we
will not tell you that you that
you cannot discuss your performance appraisals, wage increases, discipline, and
other terms and conditions of your employment with other employees.
we
will not threaten you with
discipline and discharge if you discuss your performance appraisals, wage
increases, discipline, and other terms and conditions of your employment with
other employees.
we
will not create the impression
that your union activities are under surveillance.
we
will not discharge or discipline
you for discussing your discipline or other terms and conditions of your employment
with other employees, or because you have engaged in union or other protected
concerted activity.
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 notify you in writing that
the overly broad rules prohibiting solicitation and distribution contained in
the personnel policy addendum are rescinded, void, of no effect and will not be
enforced, and that we will not prohibit you from soliciting and distributing
material in a manner protected by the Act.
we
will notify you in writing that
the overly broad confidentiality rule contained in the memorandum dated October
1, 2007, prohibiting you from discussing your salary, performance appraisals,
and wage increases with other employees, is rescinded, void, of no effect and
will not be enforced, and that we will not prohibit you from discussing your
salary, performance appraisals, wage increases, discipline, and other terms and
conditions of your employment with other employees in a manner protected by the
Act.
we
will furnish you with inserts for
the current edition of the personnel policy addendum that (1) advise that the
unlawful solicitation and distribution rules have been rescinded, or (2)
provide the language of lawful provisions; or publish and distribute to all
current employees a revised personnel policy addendum that (1) does not contain
the unlawful rules, or (2) provides the language of lawful rules.
we
will within 14 days from the date
of the Board’s Order, offer Christina Cox 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 Christina Cox whole for
any loss of earnings and other benefits suffered as a result of her unlawful discharge,
less any net interim earnings, plus interest.
we
will, within 14 days from the
date of this Order, remove from our files any reference to the unlawful
discharge of Christina Cox, and we will, within 3 days thereafter, notify her in
writing that this has been done and that the discharge will not be used against
her in any way.
Bryant Health
Center, Inc.