Vencare v. NLRB

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Vencare Ancillary Serv., Nos. 01-2165/2300

ELECTRONIC CITATION: 2003 FED App. 0439P (6th Cir.) Inc. v. NLRB

File Name: 03a0439p.06

_________________

UNITED STATES COURT OF APPEALS COUNSEL

FOR THE SIXTH CIRCUIT ARGUED: John V. Nordlund, Fairfax, California, for

_________________ Petitioner. Meredith L. Jason, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Respondent.

VENCARE ANCILLARY X ON BRIEF: John V. Nordlund, Fairfax, California, for

SERVICES, INC., - Petitioner. Meredith L. Jason, Aileen A. Armstrong,

Petitioner/Cross-Respondent, - Kira Vol, NATIONAL LABOR RELATIONS BOARD,

- Nos. 01-2165/2300 Washington, D.C., for Respondent.

-

v. > _________________

,

- OPINION

NATIONAL LABOR RELATIONS -

_________________

BOARD , -

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

1

*

After the trial in this case, Vencor, Inc. filed for Chapter 11

The Honorab le Ann Aldrich, United States District Judge for the bankruptcy. It has since emerged with a new name, Kindred Healthcare,

Northern District of Ohio, sitting by designation. Inc.

1

Nos. 01-2165/2300 Vencare Ancillary Serv., 3 4 Vencare Ancillary Serv., Nos. 01-2165/2300

Inc. v. NLRB Inc. v. NLRB

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 patients that day 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

2

Norman deC aussin was the only employee not affected by the wage 5

cut. DeCa ussin, Higdon and T homas acknowledged that the group

informed Stuart tha t they were going to stop seeing p atients but did not

3 testify that the group would continue to do other work.

They elected the name “Vencare Five” since Kanth-Bohre dropped

out because of concerns over his immigration status. Traci O’Rourke 6

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

patients. Upon learning of that “detail” at the June 23 mee ting 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.

4 7

The employees testified at the hearing before the administrative law Only Thoma s actually told Stuart tha t she wo uld quit. Thom as and

judge that the group only wanted to reve rse the wage adjustm ent; it Higdon testified, however, that they not only intended to resign, but

mere ly raised the issues such as work load and scheduling, to support considered themselves as having already resigned before being informed

their claim that the wage adjustment was unwarranted. of their termination.

Nos. 01-2165/2300 Vencare Ancillary Serv., 5 6 Vencare Ancillary Serv., Nos. 01-2165/2300

Inc. v. NLRB Inc. v. NLRB

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 523, 528 (6th Cir. 2003). More specifically, “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 the management only 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.

8

The ALJ found that Petitioner did not violate the Act because the

NLRB, 441 U.S. 488, 497 (1979)).

emplo yees’ work stoppage was unprotected. The ALJ found that the

employee group was a “labor organization” within the meaning of Section ANALYSIS

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

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

unprotected partial strike.

Nos. 01-2165/2300 Vencare Ancillary Serv., 7 8 Vencare Ancillary Serv., Nos. 01-2165/2300

Inc. v. NLRB Inc. v. NLRB

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 employees 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 ALJ 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 continued to say:

9

We accordingly do not address the issue of reinstatement and back

pay, including the que stion of whether two o f the five employees quit In reaching this conclusion, we find it unnecessary to

before they were told they were fired. We also do not ad dress Petitioner’s determine the percentage of time the employees normally

argument that it was never advised that the Vencare Five engaged in a spent performing paperwork, or the percentage of billable

strike.

Nos. 01-2165/2300 Vencare Ancillary Serv., 9 10 Vencare Ancillary Serv., Nos. 01-2165/2300

Inc. v. NLRB Inc. v. NLRB

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 employees 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

testimony. 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 demands 10

known. As the Board noted in an earlier case, “the Board and Resp ondent’s discussion of cases invo lving sit-do wn strikes is

therefore misplaced. All the cases cited in its brief involved situations

the courts have repeatedly condemned employees’ refusal to where the striking workers remained on the premises without working.

work on the terms lawfully prescribed by the employer while 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., Roseville Dodge, Inc. v. NLRB, 882 F.2d 135 5 (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

provided their employers with a clear indication of a strike. T he issue in

of their functions during a strike by the hospital employees); those cases was not whether or not employees engaged in a partial strike,

See also N.L.R.B. v. Local Union No. 1229, 346 U.S. 464, 476 but rather, assuming that a strike was a comp lete one, whether or not their

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) (“No t every work stoppage is protected

openly or secretly refuse to do his work.”) (citations omitted). activity, howe ver; at some point, an employer is entitled to assert its

private property rights and demand its premises back.”). By citing these

It is true that had the Vencare Five simply remained on the cases, Respondent merely confuses the issue by ignoring the clear

premises and waited to hear back from the management, they difference between partial strikes and sit-down strikes. Although both

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).

Nos. 01-2165/2300 Vencare Ancillary Serv., 11 12 Vencare Ancillary Serv., Nos. 01-2165/2300

Inc. v. NLRB Inc. v. NLRB

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 employer.”); 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 their students). 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 employees 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., activity. There will always 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

11

that would be neither strike nor work.”) (quoting Valley City, 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

paid for any time they are “suffered or permitted to work,” regardless of

patients while performing other duties is an unprotected whether the employees ask or expect to be paid, we agree with Petitioner

activity: that employees’ expectations about being paid are not relevant to the

question of whether there was a partial strike. 29 CFR § 785.11 (“F or

Employees may protest and seek to change any term or example, an employee may voluntarily continue to work at the end of the

condition of their employment, and their ultimate shift. He may be a piecewo rker, he may desire to finish an assigned task

sanction is the strike. . .What may make such a work or he may wish to corre ct errors, paste work tickets, prepare time repo rts

or other records. The reason is immaterial.”)

stoppage unprotected is exactly what makes any work

stoppage unprotected, that is, the refusal or failure of the 12

See, e.g., NLRB v. Reynolds & Manley Lumber Co., 212 F.2d 155

employees to assume the status of strikers, with its (5th Cir. 1954) (emp loyee w alked off the job and left a potentially

consequent loss of pay and risk of being replaced. explosive b oiler 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 p lant from imminent danger and destructio n during

be required to do so by striking unequivocally. They strike period); Marshall Car Wheel & Foundry Co., 107 N.L.R.B. 314

(1943), enf. denied, 218 F.2d 409 , 413 (5th C ir. 195 5), supplem ented , 115

may not simultaneously walk off their jobs but retain the N.L.R.B. 7 (1956) (employee walkout happened at the moment molten

benefits of working. iron was ready to be poured).

Nos. 01-2165/2300 Vencare Ancillary Serv., 13

Inc. v. NLRB

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.