Vencare v. NLRB

Respondent/Cross-Petitioner. - KENNEDY, Circuit Judge. This case presents an appeal

- from the Board's order finding that Petitioner--Cross-

N Respondent Vencare unlawfully discharged five employees

On Petition for Review and Cross-Application for engaging in a protected activity under the National Labor

for Enforcement of an Order of the National Relations Act ("Act"). Petitioner argues that the Board erred

Labor Relations Board. in several respects, including its holding that the employees'

Nos. 25-CA-26096; 25-CA-26096-2 conduct did not constitute an unprotected partial strike. We

deny the enforcement of the Board's order.

Argued: October 23, 2003

BACKGROUND

Decided and Filed: December 11, 2003

Petitioner was a subsidiary of Vencor, Inc., a national Before: KENNEDY and GIBBONS, Circuit Judges; health care provider based in Louisville, Kentucky that ALDRICH, District Judge.^* operated hospitals, skilled nursing facilities and nursing

homes, including Hermitage Nursing and Rehabilitation Center ("Hermitage").¹ Petitioner contracted rehabilitation services to Vencor. At all relevant times, Bryan Stuart was

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the on-site supervisor of Petitioner's employees at Hermitage, DeCaussin told Stuart that the employees were going to

including physical therapists, physical therapy aides, speech refuse to see patient s t hat d ay until someone from upper

and language therapists, and rehabilitation technicians. The management met with them to discuss their issues.

Hermitage therapists were paid hourly wages rather than a DeCaussin also said that the group would remain on the

salary, but did not punch a time clock. Instead, they each premises. Severs testified that the group informed Stuart that

filled out a daily activity report ("DAR") each evening, they "were going to . . . do other work such as paper work

describing that day's work. Petitioner calculated the until corporate agreed to talk to [them]."⁵ No one said they

therapists' pay according to the number of hours they claimed were on strike, nor were the terms "strike" and "work

on their DARs. stoppage" ever used. Stuart told them he would fax the letter

to Kevin Mack, his superior. He also asked the Vencare Five

On May 29, 1998, Petitioner announced wage reductions to continue seeing patients until he received a response from for its rehabilitation employees, effective July 1. On the same the upper management. The group refused and returned to the day, Stuart met with his employees to explain the wage therapy office to do paperwork and other projects.⁶ At some changes. The employees, upset by the news, began point that morning, Thomas told Stuart that if the issue was discussing among themselves in early June what actions to not addressed, she would quit.⁷

take to reverse the decision. On Friday, June 19, a group of

the rehabilitation employees met after work at Moreland Park, Over the course of the morning of June 23, Stuart met

near Hermitage. This group included Norman deCaussin,² individually with each employee who was refusing to see

Evonne Higdon, Barbara Thomas, Lisa Winkler, Nil Kanth- patients. He explained that their refusal to see patients was an

Bohre, and Martha Severs ("Vencare Five.")³ At the meeting, entirely different matter from their grievance letter, and that

the group drafted a letter containing their demands related to refusing to see patients could have serious consequences for

the wage reductions and raising other issues, including work their jobs. Around noon, deCaussin told Stuart that he was

load and scheduling.⁴ The group selected deCaussin to not feeling well and was going to go home. He also said that

represent them at the meeting with Stuart on June 23. if Stuart needed anything, he should call deCaussin at home.

The other four employees told Stuart about the same time that

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Norman deCaussin was the only employee not aff ected by the wage⁵

cut. DeCaussin, Higdon and T homas acknowledged that the group

informed Stuart that they were going to stop seeing patients but did not

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They elected the name "Vencare Five" since Kanth-Bohre dropped testify that the group would continue to do other work. out because of concerns over his immigration status. Traci O'Rourke⁶

signed the letter unaware that it contained the threat to stop seeing The employees told Stuart that the therapi sts who were refusing to

patients. Upon learning of that "detai l" at the June 23 meeting with see patients did not expect to be paid that day, and none of the five filled

Stuart, she went back to seeing the patients. out a D AR for that T uesday.

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The employees testified at the hearing before the administrative law Only Thomas actually told Stuart that she would quit. Thomas and judge that the group only wanted to reverse the wage adjustment; it Higdon testified, however, that they not only intended to resign, but merely raised the issues such as work load and scheduling, to support considered themselves as having already resigned before being informed thei r claim that the wage adjust ment was unwarranted. of their termination.

they were taking "their designated lunch," but that they would Board. On August 6, 2001, the Board issued a Decision and

return. When they returned from their lunch break, Stuart Order reinstating the complaint, finding that Petitioner had

told them that he heard from management, and had been violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)).

instructed to tell them to go home until further notice. The

group met at 2:30 p.m. in the park to discuss whether to STANDARD OF REVIEW

picket the Hermitage facility . They decided not to do so.

Under the Act, the scope of this Court's review of the

On June 24, they met again and drafted letters which were Board's findings is limited. First Healthcare Corp. v. NLRB , faxed to corporate management, in which they requested a 344 F.3d 5 23 , 528 (6th Ci r. 2003 ). Mo re sp ecifically, "the meeting to address their grievances. On June 24, Petitioner findings of the Board with respect to questions of fact if decided to terminate the employees who refused to see supported by substantial evidence on the record considered as patients for insubordination. Stuart called all five employees a whole shall be conclusive." 29 U.S.C. § 160(e). "Evidence on June 24 to schedule individual meetings with them the is considered substantial if it is adequate, in a reasonable following morning. The employees telephoned each other mind, to uphold the decision." Turnbull Cone Baking Co. of and agreed to meet with th e management o nl y as a group. Tennessee v. NLRB , 778 F.2d 292, 295 (6th Cir. 1985) (per When they arrived at Hermitage the next morning, they curiam)(citing Universal Camera Corp. v. NLRB , 340 U.S. informed Stuart they would only meet as a group. Stuart then 474, 477 (1951)). Although this Court "should consider the told all of them at once that they were being terminated for evidence contrary to the Board's conclusions," it "may not insubordination due to their refusal to see patients on June 23. conduct a de novo review of the record." Id. (citing Union Nearly eight months later, on February 12, 1999, Petitioner Carbide Corp. v. NLRB , 714 F.2d 657, 600 (6th Cir. 1983)). sent each of the five discharged therapists a paycheck for "When there is a conflict in the testimony, 'it is the Board's Tuesday, June 23. function to resolve questions of fact and credibility,' and thus

this court ordinarily will not disturb credibility evaluations by

This case originated with an unfair labor practice charge, an ALJ who observed the witnesses' demeanor." Id. (quoting filed against Petitioner by Severs on September 24, 1998. NLRB v. Baja's Place , 733 F.2d 416, 421 (6th Cir. 1984)). The General Counsel issued a complaint on October 30, 1998. "The Board's application of the law to particular facts is also Following a hearing, an administrative law judge dismissed reviewed under the substantial evidence standard. . ." Id. the complaint on May 28, 1999.⁸ Petitioner and the General (citations omitted). However, "[i]f the Board errs in Counsel both excepted to the judge's decision before the determining the proper legal standard, the appellate court may

refuse enforcement on the grounds that the order has 'no reasonable basis in law.'" Id. (quoting Ford Motor Co. v.

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The ALJ found that Petitioner did not violate the Act because the NLRB , 441 U.S. 488, 497 (1979)).

employees' work stoppage was unprotected. The ALJ found that the

employee group was a "labor organizat ion" within the meaning of Section ANALYSIS

2(5) of the Act, and had failed to comply with Section 8(g), which

requires that a labor organization give 10 days notice before engaging in On appeal, Petitioner argues that the refusal by the Vencare

a work stoppage at a healthcare institution. However, the ALJ rejected Five to see patients was unprotected by the Act for two

Petitioner's alternative argument that the employees had engaged in an

unprotected partial strike. reasons: (1) it was a partial strike; and (2) the group failed to

give advance notice of the work stoppage, as required of 230 F.2d 947 (6th Cir. 1956). Employees, thus, may not

employees at a health care institution by Section 8(g) of the "refuse to work on certain assigned tasks while accepting pay

Act. Petitioner further argues that since the work stoppage or while remaining on the employer's premises." Audubon

was unprotected, it was lawful for it to terminate the Health Care Ctr. , 268 N.L.R.B. 135, 136 (1983) (finding that

employees for their refusal to see patients. Respondent nurses engaged in a partial strike when they refused to

argues that substantial evidence supports the Board's finding perform some of their job functions while performing others).

that the work stoppage was protected. We find that the They may, however, engage in a single walkout. Daniel

employees engaged in an unprotected partial strike and that Constr. , 277 N.L.R.B. 795 (1985).

their discharge was lawful.⁹ Therefore, we do not reach the

question of whether the Vencare Five constituted a labor The ALJ concluded that the Vencare Five did not engage in

organization that was required to give a 10 day notice before a partial strike. In its opinion,

striking a health care employer.

The General Counsel correctly characterize[d] the "old

Section 7 of the Act protects "not only concerted activity patient" paperwork performed after the group's under the sanction of a labor union, but also concerted activity announcement to Stuart as incidental wind-up work done of the same nature engaged in by unorganized employees." in preparation for their work stoppage regarding new Vic Tanny Int'l, Inc. v. NLRB , 622 F.2d 237, 241 (6th Cir. patients. Moreover, the Vencare Five told Stuart that 1980). However, "not...all work stoppages are federally they did not expect to be paid for this paperwork and protected concerted activities." Auto Workers Local 232 v. immediately left the premises when Stuart told them to Wisconsin Employment Relations Bd. , 336 U.S. 245, 255 do so after lunch on June 23...Lastly, the employees did (1949), overruled on other grounds by Lodge 76, Int'l Ass'n not "pick and choose" when they would perform their of Mechanists & Aerospace Workers , 427 U.S. 132 (1976). work duties by announcing either a 24-hour or few days' While empl oye es may strike to "protest and seek to change delay in seeing patients. . .Rather their action was simply any term or condition of their employment," thus assuming a short-term, single work stoppage-the first of its kind- the risk of losing their jobs, they may not strike and retain the whose only goal was to obtain a meeting with benefits of working at the same time. First Nat'l Bank of management.

Omaha , 171 N.L.R.B. 1145, 1151 (1968), enforced , 413 F.2d

921 (8th Cir. 1969). Partial strikes, where employees Vencare Ancillary Servs., Inc. , 334 N.L.R.B. No. 119, 2001

continue working on their own terms, are therefore WL 910767, at *17 (Aug. 6, 2001) (decision of the ALJ).

unprotected by Section 7 of the Act. Id. at 1149-51; Valley The Board agreed with the AL J and found that "any work

City Furniture , 110 N.L.R.B. 1589, 1594 (1954), enforced , done after the group announced that they were refusing to see

patients, was done in preparation for, and in conjunction with the work stoppage." Vencare , 2001 WL 910767, at *9. The Board conti nu ed to say:

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We accordingly do not address the issue of reinstatement and back

pay, including the question of whether two of the five employees quit In reaching this conclusion, we find it unnecessary to

before they were told they were fired. We also do not address Petitioner's determine the percentage of time the employees normally

argument that it was never advised that the Vencare Five engaged in a

strike. spent performing paperwork, or the percentage of billable

time attributable to paperwork. The judge found that the might have been protected under the current law.¹⁰ They did employees' paperwork function took up to 10 to 20 not, however, do that. See, e.g., Highland Hosp. , 278 percent of their time and approximately 40 percent of N.L.R.B. at 1097 (drawing a distinction between the security their billable time. However, the testimony in this regard guards who stated they would not perform certain duties and was ambiguous, (particularly with respect to the 40 "the office clerical and other nonunit employ ees who joined percent figure), or was given in response to leading the strike [,] ceased working completely [,] and refused to questions, and the exhibits do not clearly support the cross the picket line."); Audubon , 268 N.L.R.B. at 136 test im ony. For the reasons discussed below, we find that, ("Having concluded that covering open sections was part of regardless of the percentage of time the employees the nurses aides' job duties, we find that the aides were normally spent on or billed for paperwork, the fact that engaged in a partial strike when they refused to work in the they performed paperwork while waiting to hear back open section. Thus, they did not completely walk off the from upper management did not render their work job.") The Board's opinion that their conduct is stoppage an unprotected partial strike. commendable since they actually behaved responsibly is

legally irrelevant. See, e.g., Audubon , 268 N.L.R.B. at 137 Id. at *9 n. 14 (emphasis added). ("While employees may protest and ultimately seek to change

any term or condition of their employment by striking or

We find that the ALJ and the Board erred in concluding engaging in a work stoppage, the strike or stoppage must be that the actions of the Vencare Five did not constitute a partial

strike. Unlike the Board, we find that it is significant that the

Vencare Five did some work after making their demands¹⁰

known. As the Board noted in an earlier case, "the Board and Respondent's discussion of cases involving sit-down strikes is

the courts have repeatedly condemned employ ees' refusal to therefore misplaced. All the cases cited in its brief involved situations

work on the terms lawfully prescribed by the employer while where the striking workers remained on the premises

without working.

See, e.g., City Dodge Ctr., Inc. , 289 N.L.R.B. 194, 196-97 (1988), remaining on their jobs." Highland Hosp. Corp. , 278 enforced sub nom. , Rosevill e Dodge, Inc. v. NLRB , 882 F.2d 1355 (8th N.L.R.B. 1097 (1986) (finding that the security guards Cir. 1989) (complete work stoppage protected even though employees engaged in a partial strike when they failed to perform some remained on employer's premises). Their failure to work therefore of their functions during a strike by the hospital employees); provided their employers with a clear i ndication of a strike. The issue in See also N.L.R.B. v. Local Union No. 1229 , 346 U.S. 464, 476 those but rather, cases wa assumi s not wh ng that a strike ether or not employ was a comp ees engage lete one, whet d in a part her or ial not stri their ke, n. 12 (1953) ("An employee can not work and strike at the conduct should be protected by the Act. See, e.g., Yale Univ. , 330 same time. He can not continue in his employment and N.L.R.B. 246, 257⁽¹⁹⁹⁹⁾ ("Not every work stoppage is protected openly or secretly refuse to do his work.") (citations omitted). activity, however; at some point, an employer is entitled to assert its It is true that had the Vencare Five simply remained on the private property rights and demand its premises back."). By citing these premises and waited to hear back from the management, they cases, difference Respondent merely confuses the is between partial strikes and sit-down strikes. sue by ignori Altho ng the c ugh both lear

types of strikes constitute an unprotected activity, they raise different concerns and should not be evaluated similarly. First Nat'l Bank of Omaha , 171 N.L.R.B. at 1149 ("There are cases which hold that the concerted activity of employees in refusing to work on assigned tasks [1] while accepting pay or [2] while remaining on the employer's premises is unprotected.") (emphasis added).

complete, that is, the employees must withhold all their First Nat'l Bank of Omaha , 171 N.L.R.B. at 1151.¹¹ We services from their employ er."); Yale University , 330 understand that the Vencare Five were upset over the N.L.R.B. at 247 (finding that the graduate teaching fellows impending wage cuts. They decided to "flex their muscles" engaged in a partial strike when they refused to submit their by withholding patient care, the major function of their jobs. students' final grades for the semester to the University but The Board implies that they were doing work necessary for continued writing letters of evaluation and recommendation the protection of patients. However, there was no evidence for th eir stu dent s). The underlying rationale of the that any of the performed work fell into the category of prohibition on partial strikes is that the employer has a right protecting the patients. Furthermore, there were no other to know whether or not his employees are striking. See Vic exigent circumstances that required the striking employ ees to Koenig Chevrolet , 263 N.L.R.B. 646, 650 (1982) (finding that continue some work to avoid irreparable harm.¹² The "a struck employer is entitled to a clearcut decision from employees testified that they merely caught up on back employees either to join the strike or to work in accordance paperwork which, in some cases, was several weeks old, as with the instructions of the employer, including performance well as helped the clerical staff with filing. of struck work, so long as the employer does not discriminate

against employees unwilling to perform the work of the We reiterate that employees must completely stop working

strikers."). The conduct exhibited by the Vencare Five does or risk being discharged for engaging in an unprotected

not meet the clear definition of a protected strike. Yale Univ. , acti vi ty. There will alway s be conflicts between employers

330 N.L.R.B. at 247 (affirming the ALJ's finding that the and employees, and the employees will often resort to

teaching fellows who refused to submit grades while writing

recommendation letters "sought to bring about a condition

that would be neither strike nor work.") (quoting Valley City ,¹¹ Petitioner and Respondent argue about the legal relevance of the

110 N.L.R.B. at 1595). The Board had clearly articulated a Vencare Five's expectation that they would not be paid for June 23. In

long time ago why the Vencare Five's decision to stop seeing light of the Fair Labor Standards Act's requirement that employees be

patients while performing other duties is an unprotected paid for any time they are "suffered or permitted to work," regardless of

acti vi ty: whether that employ the employees ees' expect ask or expect ations about bei to be paid, ng paid are we agree not relevant t with Petit o the ioner

question of whether there was a partial stri ke. 29 CFR § 785.11 ("For

Em pl oyees may protest and seek to change any term or example, an employee may voluntarily continue to work at the end of the condition of th eir emp lo yment, and their ultimate shift. He may be a pieceworker, he may desire to finish an assigned task sanction is the strike. . .What may make such a work or he may wish to correct errors, paste work tickets, prepare time reports stoppage unprotected is exactly what makes any work or other records. The reason is immaterial.") stoppage unprotected, that is, the refusal or failure of the¹² employees to assume the status of strikers, with its (5th Cir. 1954) See, e.g., NLRB v. Reynol (employee walked ds & Manley off the jo Lumber Co. b and left a po , 212 F. tentially^2d 155 consequent loss of pay and risk of being replaced. explosive boiler unattended); U.S. Steel Co. v. NLRB , 196 F.2d 459 (7th Employees who choose to withhold their services Cir.¹⁹⁵²⁾ (supervisors refused to assist their employer in maintaining and because of a dispute over scheduled hours may properly protecting the steel plant from imminent danger and destruction during be required to do so by striking unequivocally. They strike period); Marshall Car Wheel & Foundry Co. , 107 N.L. R.B. 314 may not simultaneously walk off their jobs but retain the (1943), N.L.R.B. enf. deni 7 (1956) ( ed , 218 employ F.2d ee wal 409, 413 kout (5th C happ ir. 195 ened at th^5), sup e moment molt plem ented ,¹¹⁵ en benefits of working. iron was ready to be poured).

withholding their work as means of applying pressure on the

employers. The employers will often respond by replacing

the striking workers. Although we are sympathetic to the

plight of the Vencare Five, who appear to have no knowledge

of the labor law, we are constrained to find that the harsh

result in this case is a consequence of a Congressional policy

designed to protect both the employer and the employee. See,

e.g. , Vic Koenig Chevrolet , 263 N.L.R.B. at 650 (finding that

a "young, inexperienced, very likely unknowledgeable about

labor relations" lot boy nevertheless engaged in an

unprotected partial strike when he failed to perform some of

his duties).

CONCLUSION

In sum, we conclude that the employees engaged in an

unprotected strike and were therefore lawfully discharged by

Petitioner. Enforcement of the Board's order is denied.