Autumn Manor, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1983

268 N.L.R.B. 239 (N.L.R.B. 1983)

AUTUMN MANOR
Autumn Manor, Inc. and Dorothy Broz, Maxine
Hill, and Sundra Kurtz. Cases 17-CA-10719-1,
17-CA-10719-2, and 17-CA-10719-3
10 November 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 February 1983 Administrative Law Judge
James M. Kennedy issued the attached decision.
The General Counsel filed limited exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Autumn Manor, Inc., Florence, Kansas,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified:
1. Insert the following as paragraph 2,b, and re-
letter the subsequent paragraphs.
"b. Expunge from its files any reference to the
discriminatory discharge of Sundra Kurtz on 10
November 1982 and notify her, in writing, that this
has been done and that evidence of this discharge
will not be used as a basis for future personnel ac-
tions against her."
2. Substitute the attached notice for that of the
administrative law judge.
In adopting the judge's recommendation to dismiss the complaint al-
legations involving Broz and Hill, we rely on his findings that their testi-
fying before the State Department of Health and Environment had no
direct relationship to the working conditions of employees and therefore
their conduct did not constitute protected activity. In doing so, we find it
unnecessary to pass on the judge's statements concerning whether or not
their activities constituted concerted activity.
2 We shall modify the judge's recommended Order so as to require the
Respondent to expunge from its files any reference to the discriminatory
discharge of Sundra Kurtz on 10 November 1981 and to notify her, in
writing, that this has been done and that evidence of this unlawful dis-
charge will not be used against her. See Sterling Sugars, 261 NLRB 472
(1982).
268 NLRB No. 29
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL NOT terminate any employees for exer-
cising such rights.
WE WILL offer to Sundra Kurtz immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus enterest.
WE WILL expunge from our files any reference
to the discriminatory discharge of Sundra Kurtz on
10 November 1982 and notify her, in writing, that
this has been done and that evidence of this dis-
charge will not be used as a basis for future person-
nel actions against her.
AUTUMN MANOR, INC.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was tried before me at Emporia, Kansas, on Sep-
tember 28-29, 1982, pursuant to a consolidated complaint
issued by the Regional Director for Region 17 of the Na-
tional Labor Relations Board on August 5, and which is
based on separate charges filed by Dorothy Broz,
Maxine Hill, and Sundra Kurtz,' individuals (Broz, Hill,
and Kurtz), on November 16 and November 20, 1981.'
This case has been corrected to reflect the correct spelling of Kurtz'
first name. See her spelling in the transcript as well as her signature on
the charge form.
I All dates herein refer to 1981 unless otherwise indicated.
~
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that Autumn Manor, Inc. (the Re-
spondent) has engaged in certain violations of Section
8(a)(1) of the National Labor Relations Act, as amended
(the Act).
Issues
1. Whether or not it is a violation of the Act to dis-
charge employees such as Broz and Hill for testifying in
a state health department relicensing hearing.
2. Whether the Respondent discharged employee
Kurtz for inquiring about the reasons for the discharge
of Broz and Hill and thereby violated the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of both the General Counsel and the Respondent.3
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
The Respondent admits it is a Kansas corporation op-
erating the nursing home in question at Florence,
Kansas; it further admits its annual gross volume of busi-
ness exceeds $100,000 and that it annually purchases
goods and materials valued in excess of $5,000 which
originate from sources outside Kansas. Accordingly, it
admits, and I find, that it is an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALI.EGED UNFAIR LABOR PRACTICES
A. Background
The Florence facility is one of four nursing homes
owned by the Respondent at various locations in Kansas.
The pleadings describe Harold Chapman as the "owner."
At material times the administrator at Florence was
Chlodine Fisher. While the exact nature of the patient
population at the Respondent's Florence facility is not
clear, it apears that for the most part it provides residen-
tial care for elderly patients, at least some of whom are
mildly mentally ill. It can be inferred from the record
that others are in various stages of senility or unable to
care for themselves. To care for these patients the Re-
spondent's staff consists principally of nurses, nurses
aides, social and recreational personnel, and food service
employees. It is not necessary, for the purposes of this
case, to describe the administrative hierarchy within the
Florence operation as it relates to the direction of em-
ployees in their duties. Two of the alleged discrimina-
tees, Broz and Kurtz, are nurses aides. Hill was the
"social service designee."
Broz was the most experienced of the three, having
been hired in 1974, leaving after 18 months, and being
rehired in 1978. Her employment was then continuous,
3 The Respondent filed a motion to file its brief out of time. In the
absence of opposition the motion has been granted.
until November 9, 1981, when she was discharged. Hill,
prior to her discharge on the same date, had been em-
ployed for about 4 years. The first two were as activities
director and the last two as the social service designee.
Kurtz is a young woman in her early 20's. She was ini-
tially hired in July 1980 and worked until approximately
December of that year when she left. She was rehired in
October 1981 and worked as a full-time nurses aide until
November 10. She worked approximately 5 weeks
during her last period of employment. All three were
paid the minimum wage. There is no evidence that they
were licensed personnel. The aides' duties were primarily
to feed and bathe patients.
As a nursing home the Respondent is licensed and reg-
ulated by a state agency, the Kansas Department of
Health and Environment. That department receives and
investigates complaints regarding the delivery of patient
care at health institutions in the State. Furthermore, it
routinely monitors and considers the quality of patient
care on license renewals which must be sought annually.
B. Broz and Hill
1. Facts relied on by the General Counsel
Sometime in March the Department of Health and En-
vironment, having received some complaints-apparently
from a patient's family-notified the Respondent that it
would conduct an investigation.4 In April Administrator
Fisher and Owner Chapman conducted a staff meeting
regarding the investigation. There is little evidence in the
record regarding what occurred at the meeting, but I
think it is fair to say that the Respondent sought infor-
mation on the course of the investigation, including inci-
dents which might be scrutinized. He also sought sugges-
tions from employees regarding improving the operation.
There is nothing specific in the record showing the
status of the State's investigation between March and
August. However, apparently on June 30, Fisher called
another staff meeting at which she accused employee
Judy Fulton of being an instigator, saying she considered
Fulton a troublemaker because she had talked to the
State, even though she knew it was at the State's request.
Fulton described to me the meeting she had had in
March with a state investigator at a restaurants The in-
vestigator, Ms. Jerry Pittsenberger, had a list of com-
plaints, asked Fulton if she had any knowJedge regarding
them, and asked how director of Nursing Anita Hoffman
handled herself with employees and residents. She also
asked Fulton how money was handled. The investigator
asked Fulton how Food Service Supervisor Twylah
Nightengale got along with employees; she had questions
regarding whether Nightengale had exceeded her author-
ity as food supervisor by injecting herself into the duties
of other departments. She also asked about timesheets
and scheduling.
According to Owner Chapman, notices of complaints are routinely
given. He also testified to the effect that such investigations are relatively
common.
* Two former employees were also present at the restaurant with the
investigator, Jonetta Carr and Marge Branson.
240
AUTUMN MANOR
The next day Fulton reported to Fisher what had tran-
spired. Fisher asked her to list, as best she could, those
questions which the investigator had asked. After check-
ing with Pittsenberger and obtaining permission, Fulton
did so. Thereafter, according to Fulton, a day did not
pass without Fisher making some remark to her regard-
ing the investigation. On June 30, the day of the meeting,
Fulton was discharged.
Fulton's discharge, together with the discharge of
Nancy Soyez, was the subject of an unfair labor practice
complaint which was settled and severed on the first day
of this hearing. That agreement contained a nonadmis-
sion clause. The General Counsel's theory regarding
those two discharges was that the Respondent fired them
because they had engaged in the protected concerted ac-
tivity of banding together with other employees and
holding meetings to discuss wages, hours, and terms and
conditions of employment. That theory is significantly
different from the theory the General Counsel advances
with respect to Broz and Hill.
Broz and Hill were not involved in any of the forego-
ing matters. It was not until late August when, according
to Broz, she contacted another state investigator, Bonnie
Conyers of the Social Rehabilitation Service, by tele-
phone. While Broz did not explain what prompted her to
make the telephone call, she appears to have been con-
cerned about incidents involving the treatment of pa-
tients which she believed should be called to the atten-
tion of the Social Rehabilitation Service. She had
become aware that Convers was conducting an investi-
gation. The telephone conversation was never revealed
to the Respondent.
Broz testified she told Conyers of two incidents. On
one occasion she had observed Administrator Fisher, to
induce a patient to get out of bed, threaten to burn the
patient's religious articles while making the patient
watch. The second incident involved Director of Nurs-
ing Anita Hoffman. Broz said that she had heard a pa-
tient ask Hill to write a letter for her, but Hoffman inter-
vened telling the resident in profane terms that Hill was
not be write the letter and the patient should go to her
room.
There is no evidence regarding any similar effort by
alleged discriminatee Hill to contact the State.7 Howev-
er, Administrator Fisher testified that Conyers had asked
to meet with the heads of each department and that Hill,
as the social service designee, was one of those individ-
uals. Fisher later asked Hill to describe her conversation
with Conyers.
There is no evidence that either Broz or Hill was
aware of each other's involvement in the investigation or
that they had the interest of employees in mind when
they spoke to the investigator.
I The date of these incidens which appear to have occurred on the
same day is unclear. Broz testified she reported them to Conyers in
August 1981. Her testimony before the DHE on November 2 describes
the incidents as having occurred in September. Did she mean September
1980 or was she incorrect regarding the date of her telephone call to
Conyers?
I Hill did not testify in this proceeding despite having filed her own
charge and despite having been subpoenaed by the General Counsel.
Indeed, according to the Respondent's counsel, Hill also failed to appear
at the Board's Regional Office prior to trial to discuss possible settlement.
In late October both Broz and Hill were subpoenaed
by the Department of Health and Environment to testify
at a November 2 hearing to determine whether or not
the Respondent's Florence facility should be relicensed.
Both did so and appear to be the only two rank-and-file
employees who gave testimony.
Broz testified about the two incidents described above.
Hill testified that one of her duties was to write letters
for residents. In addition, she described several incidents
which she had observed. She said in August she had seen
Administrator Fisher twice "smack" a resident on the
back and push her to her room because the patient re-
peated vulgarities. She testified there were times when
she delivered to residents mail which had already been
opened and one resident needed permission from Fisher
before sending letters. She described an incident where
she had seen Fisher distribute cookies belonging to one
resident to other residents. She said that employees had
commonly "yelled" at residents but the practice had re-
cently diminished. Furthermore, patients were now being
permitted a greater amount of freedom to leave the
home and were being offered coffeebreaks. Finally, she
described an incident in which a patient had left the fa-
cility without permission, had returned, and had been
"frisked."
With respect to her own qualifications, Hill testified
during the DHE hearing that prior to taking the job she
had no previous background in social service and had
been given no specific orientation for it although she
held the position for 2 years at the time of her testimony
and had served as activity director for 2 years before
that. She testified that once a week she met with depart-
ment heads to discuss care plans and a social service con-
sultant came to the home about once a month to discuss
such plans with her. It should be observed that Hill,
whose duties were part time in any event, had been re-
duced from 3 days per week in July and August to I day
per week in September and October. She testified about
her reduced hours as well.
Both Broz and Hill testified on November 2. Both
were discharged on November 9, exactly I week later.
Broz had normally worked 3 days per week at that time,
but had not been scheduled to work at all during the
week of November 2. Likewise, Hill had not been sched-
uled during that week either.
2. Analysis and conclusions
Upon the foregoing facts the General Counsel asserts
that he had made out a prima facie case that the Re-
spondent discharged Broz and Hill because they gave
testimony to the Kansas Department of Health and Envi-
ronment and that such a discharge violates Section
8(a)(1) of the Act. I agree that the evidence constitutes a
prima facie case that the Respondent discharged Broz
and Hill because they gave such testimony. However, I
shall not analyze the facts adduced in defense nor shall I
make specific factual findings resolving the two versions
because I conclude that even if that is the case such con-
duct nevertheless does not violate Section 8(a)(1) of the
Act.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Usually a protected concerted activity case requires an
initial analysis of whether or not the conduct is concert-
ed, followed by an analysis of its protected status. I shall
deviate from this methodology here and simply assume
arguendo that Broz and Hill were engaged in concerted
activity when they testified before the DHE pursuant to
its subpoena. There are in fact real doubts concerning
the concerted character of their testimony. The analysis
would be difficult and would probably raise more ques-
tions than answers. Since the ultimate outcome depends
on the protected status question, which will require dis-
missal whether or not "concert" can be found, there is
little point in deciding the first issue.8
In support of his contention that such a discharge vio-
lates Section 8(a)(1), the General Counsel relies princi-
pally on the Board's decision in Misericordia Hospital
Medical Center, 246 NLRB 351 (1979), enfd. 623 F.2d
808 (2d Cir. 1980). In that case the Board found a hospi-
tal to have violated Section 8(a)(l) of the Act by dis-
charging a nurse, one Cafaro, who had participated in an
ad hoc committee which had made an unfavorable report
to the "Joint Commission on Accreditation of Hospitals."
That commission was not a governmental agency, but
had a legal duty to survey hospitals to determine wheth-
er or not they were meeting the standards of care man-
dated by law. The ad hoc committee report which the
Joint Commission received was the result of a collabora-
tion by several physicians and nurses. Its report began by
accusing the hospital of "serious deficiencies in the qual-
ity of care" at the hospital. That was followed by a de-
scription of the various incidents which had led the
members of the ad hoc committee to their conclusion.
As can be seen there are immediate differences be-
tween Misericordia and the instant case. First, in Miseri-
cordia, the dischargee had joined with other employees,
at least nurses, if not physicians, in a traditional concert-
ed act, the formation of a committee and the drafting of
a report. Nothing like that occurred in the instant case.
I Without attempting to decide whether Broz and Hill's mandated tes-
timony to the DHE is concerted the following item would need to be
considered. Should the syntax of Sec. 7 delineating an element of em-
ployee voluntarism in the conduct be literally applied? A strong argu-
ment can be made that activities protected by Sec. 7 of the National
Labor Relations Act, i.e., the right "to engage in . concerted activities
for the purpose of ... mutual aid or protection" must be matters of the
employees' own choice. In other words, the Act seems to protect em-
ployees who choose to seek mutual aid or protection for themselves and
other employees, contemplating an employee using his or her own free
will to engage in conduct seeking such an end. Sec 7 does not, by its
own grammar, concern itself with the volition of another entity, such as
a court or an administrative agency exercising subpoena power. A sub-
poena, by its own nature, is a form of legal compulsion requiring an indi-
vidual to become a witness whether or not he or she wishes to do so. As
Broz and Hill were acting under a legal compulsion their own volition
was not involved. Thus the element of self-will suggested by Sec. 7 of
the Act may not be present.
Moreover, one would need to inquire about the "substituted concerted
activity" concept-the legal fiction that it is a concerted act for one em-
ployee to go to a governmental agency. (See Alleluia Cushion Co., 221
NLRB 999 (1975), and its progeny.) While the Board has had no difficul-
ty in finding concert when an employee goes to an agency having regula-
tory authority over working conditions (i.e., OSHA, health departments,
labor departments, workmen's compensation agencies, legislative bodies,
etc.), many of the appellate courts have. Moreover, it is less than clear
that concert is involved when the agency has no authority over working
conditions. Complaints to some third parties or agencies (i.e., the police
department) may not affect working conditions at all.
Neither Broz nor Hill was ever involved in any group
activity. The only way their conduct may be considered
concerted is if communicating with the state health de-
partment is a concerted act in and of itself.
Next, employee Cafaro's conduct in Misericordia was
purely voluntary, something she wished to do by virtue
of her perception of performing some public good. In
contrast to that, both Broz and Hill were subpoenaed to
appear, on an involuntary basis, before the department's
hearing. It is probably true that Broz had motivations
somewhat similar to those of Cafaro when she telephone
the state investigator. But there is no evidence that the
Respondent had any knowledge or even any idea of
Hill's purpose except that it knew Hill had responded to
a routine request from the department. No evidence has
been adduced that Hill had any motive other than to co-
operate as the Respondent had requested.
Even if Broz and/or Hill harbored altruistic or any
other motives for giving their testimony, the Respondent
could not have know it. All it knew was that both indi-
viduals had, pursuant to a subpoena, given testimony de-
scribing in factual terms incidents about which the de-
partment wished to know. Moreover, even if it can be
assumed that the employees' motives were designed to
improve patient care, the principal altruistic motive
which the Respondent might have presumed,9 it does
not follow that the Respondent would view their testi-
mony as aimed at the improvement of working condi-
tions of the employees at the home. Their testimony had
nothing to do with working conditions per se.
Indeed, neither Broz nor Hill gave any specific testi-
mony regarding conditions at the home as they impacted
employees directly. Thus, it may reasonably be conclud-
ed that during the investigative stage they were not
asked to describe such matters to the department and did
not do so. Furthermore, it is unlikely that the department
would be particularly concerned about the working con-
ditions of employees or take the employees' part in the
consideration of such matters. The department's statuto-
ry mandate deals with patient care, not the rights of em-
ployees. (See Kan. Stat. Ann. Ch. 39, Art. 9.) That law
gives the department no authority directly to regulate
the working conditions of employees in nursing homes.
To the extent that the State exercises such authority, it is
through an entirely different department, the Department
of Labor, and its authority is set forth in the Kansas
Labor and Industry Code.
The General Counsel concedes that Broz and Hill's
testimony before the department had no direct impact on
working conditions. He nonetheless argues that there is
an indirect impact. He asserts that patient abuse, left un-
corrected, could cause patients to become resentful and
more difficult to handle. Whether that argument would
prevail in other fact patterns, it is not supported by the
record here.
Both Broz and Hill testified to specific incidents which
they had observed while employed at the Respondent.
Examples were allegedly slapping a balky patient on the
back, monitoring outgoing mail, prohibiting an employee
9 Chapman's actual perception was that the testimony threatened the
Respondent's existence as menacing its license.
242
AUTUMN MANOR
from writing a letter for a patient, distributing cookies
belonging to a patient to other patients, and similar inci-
dents. Many of these incidents may have been perfectly
justifiable. Hill did not testify that the patient whose
back was slapped was injured or in any way harmed. It
may have been that the patient was mentally ill in a
manner requiring a certain amount of attention-getting
and that such treatment was medically acceptable. Like-
wise monitoring the mail of mentally ill patients may be
desirable depending on the nature of that individual's ill-
ness. Similarly, with respect to the cookies, the recipient
may have given permission or was unable either to con-
sume them or otherwise give permission; if the cookies
were not eaten by somebody they may have gone unen-
joyed altogether. tO
Neither I nor the Board is in any position, particularly
on the slender nature of this record, to determine wheth-
er such action was justifiable. It may well be that the
conduct was inappropriate. However, only an agency
with expertise in that field would know. It seems unlike-
ly that Broz as a nurses aide or Hill as a social service
designee would be in a position to know. Neither had
medical, psychiatric, or managerial training or experi-
ence. Their duties were hygienic. In contrast the two in-
dividuals who were accused of the misconduct were Ad-
ministrator Fisher and Director of Nursing Hoffman.
These individuals were in position of both knowledge
and authority regarding such matters. The appropriate
agency to evaluate the Broz-Hill reports against the
Fisher-Hoffman explanations would be the state agency
regulating such conduct, not the Board. Thus, when the
General Counsel argues that these incidents might have
an impact on working conditions, he is simply engaging
in speculation, for these incidents, if they occurred, may
have been within accepted standards of residential care.
If so, the Board should not attempt to second guess the
Department of Health and Environment which has ex-
pertise in this field and assume a detrimental impact on
the working conditions of employees. In the final analy-
sis the Board cannot know whether this conduct would
result in adverse working conditions for employees. And,
if it cannot know, it cannot simply assume it. Thus, the
General Counsel fails in his proof that these incidents, if
uncorrected, would have an adverse impact on employ-
ees' working conditions.
However, it is argued that Misericordia, supra, together
with the Board's decision in Reading Hospital, 226
NLRB 611 (1976), requires such an assumption and that
indirect impact, even if only potential, is enough to gain
the Act's protection. Yet, G & W Electric Specialty Co.,
154 NLRB 1136 (1965) (Member Jenkins dissenting), enf.
denied 360 F.2d 873 (7th Cir. 1966), cited by the General
Counsel, sets forth a rule which appears severely to
damage his own argument. At 1137 of that decision the
Board says that Section 7 protection may be extended to
activity which is "close enough in kind and character,
and bears such a reasonable connection to matters affect-
ing the interest of employees qua employees, as to come
within the general reach of the 'mutual aid and protec-
tO The alleged threat to burn religious articles does not appear to fall
within the category of justifiability.
tion' the statute is concerned to protect." If the proper
test is that which is cited in G & W Electric Specialty-
that is, the interest must be employee qua employee, "
Hill and Broz's situations fall short. They were not en-
gaged in employees qua employee conduct but in em-
ployee qua patient conduct. Thus, the case instead of
supporting the General Counsel actually supports the
Respondent. 1 2
Even so, the General Counsel argues that in Mlisericor-
dia and Reading the nurses involved in those cases were
also engaged in employee qua patient activity, but the
Board nonetheless found it to be conduct protected by
Section 7. First, I note that Misericordia contains an ele-
ment ignored by the General Counsel and to some extent
by those decisions which discuss the meaning of Miseri-
cordia. 13 In that case the nurse in question, Cafaro, in ad-
dition to her activities on behalf of the ad hoc commit-
tee, was also engaged in union organizing. That fact was
to some extent subordinated to the concerted activity
issues in the case, but for precedental purposes cannot be
ignored. Recently the First Circuit described Misericordia
as having occurred in the context of "a labor dispute."
See NLRB v. Mount Desert Island Hospital, 695 F.2d 634
(lst Cir. 1982), where that court said: "Although some of
the complaints were directed at managerial policies out-
side the scope of working conditions, the (Second Cir-
cuit] found sufficient nexus with a labor dispute to hold
that the activity was protected." (Emphasis added.) I
find such a comment significant in analyzing the scope of
Misericordia for it demonstrates that the ratio dccidendi
of that case is somewhat elusive.
Assuming, however that Misericordia was decided on
concerted activity grounds rather than labor dispute
grounds, there are still some significant differences be-
tween that case and the instant one. In Misericordia the
ad hoc committee's complaints were said to be directly
related to the level of staffing at the hospital and the
number of patients per staff member. A similar concern
was raised in Reading Hospital, supra. There has been no
showing of such a concern here. The incidents which
Broz and Hill described to the Department of Health
had nothing to do with the number of staff members re-
quired to carry out the home's mission of patient care.
iI The test is consistent with similar language of the Supreme Court in
Eastex, Inc. v. NLRB, 437 U.S. 556 at 565-568 (1978).
12 The Board's recent decision in Carpenters Local 35. 264 NI. Ri 795
(1982), is somewhat confusing regarding the protected status of the con-
duct. Carpenters was decided I day after the instant hearing closed and
has not been cited by either party, no doubt due to normal delays ill dis-
semination. There the Board (Member Fanning dissenting) found a viola-
tion of Sec. 8(a)(1) when the employer, a union, discharged two assistant
business agents for reporting financial and election irregularities to the
Department of Labor as possible violations of the Labor Man;gement
Reporting and Disclosure Act. The Board panel majority found their
report to be both concerted and protected but, in reply to the dissenl.
also found it to be protected intraunion conduct. It did not directly appl.
the G d W Electric Specialty rule to determine the protected status of the
concerted conduct. (Member Fanning's dissent, though not clear on the
point, may have been an effort to do so.) To the extent that Carpente.r
Local 35 is inconsistent with G & W' Electric Specialty and Ea /cxv. I de-
cline to follow it for the case can be interpreted as decided oil other
grounds.
'3 E.g, Member Fanning's dissent in Carpenters .ocal 35. supra, refer-
ring to the "staffing levels" issue
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither did it relate to other working conditions tradi-
tionally accepted by the Board as protected: safety,
health, wages, supervisory authority, etc.
Finally, the General Counsel argues that state law im-
poses a duty on nursing home employees to report pa-
tient abuse or neglect to the appropriate state agency,
and that such a duty to report is a condition of employ-
ment. Assuming that to be the case,' 4 I fail to see its ma-
teriality. Section 7 rights stand on their own and are pro-
tected for what they are. They are not increased in
either number or stature by a state-imposed working con-
dition. The touchstone remains: Are the employees at-
tempting to improve working conditions via employee
qua employee conduct? Accordingly, I do not concern
myself further with state law as somehow bettering Broz
and Hill's standing under Section 7.
Therefore, I am unable to conclude, as the General
Counsel urges, that Section 7 protects employees who
testify in aid of a state regulatory agency performing its
functions where that agency has no direct relationship to
regulating the working conditions of employees. It fol-
lows, therefore, that Broz and Hill had no Section 7 pro-
tection when they testified factually before the State De-
partment of Health and Environment in order to assist
that agency in carrying out its legislative function. Ac-
cordingly, the complaint should be dismissed insofar as it
relates to the allegations involving Broz and Hill."'
C. Kurtz
1. The facts
The facts relating to Sundra Kurtz' discharge are quite
simple. As noted previously, she had been initially hired
as an aide in July 1980 and worked for several months
before leaving her employment without explanation. Ad-
ministrator Fisher rehired her in October 1981 and she
worked until November 10 when she was discharged.
On November 9, Chapman and Fisher conducted a meet-
ing of employees regarding, among other things, the
DHE licensure hearing which had been held a week
before. It was on the day of the meeting that Chapman
had discharged Broz and Hill and that decision had
become common knowledge among the employees.
During the meeting, Kurtz, at Chapman's invitation to
ask questions, asked why Broz and Hill had been dis-
charged. When Chapman told her Hill had been dis-
charged because she was not qualified for her job, Kurtz
14 In fact the Kansas law does not impose such a condition on unli-
censed personnel such as nurses aides or social designees. It does do so
for licensed healing arts personnel. (See Kan. Rev. Stat., sec. 39-1402.)
15 I have deliberately made no factual findings regarding the reasons
Broz and Hill were actually discharged, although I have earlier agreed
that the General Counsel has made out a prima facie case that they were
discharged because they gave the testimony. I refrain from making such
findings here because, in my view, to do so would be overstepping my
authority under the Act by suggesting findings which the State may wish
to make for itself. Both it and the employees involved have the right to
file suit under Kansas law and ultimate findings, if any, should be made
by the Kansas court system rather than the Board. (See Kan. Rev. Stat.,
sec. 39-1403(b).):
No employer shall terminate the employment of, prevent or impair
the practice or occupation of or impose any other sanction on any
employee solely for the reason that such employee made or caused
to be made a report under this act.
expressed disbelief saying Hill "must have been quali-
fied" because she had worked for the Respondent for
over 5 years.
Chapman, who did not know Kurtz, thereupon asked
Fisher for her name. He then asked Kurtz if she was one
of the people who gossiped about the Respondent behind
closed doors. Without waiting for Kurtz' answer, he
said, "That's the reason why [Broz] was fired."
Chapman, concededly, was annoyed with Kurtz' ques-
tion as well as her expression of doubt regarding the
reason he advanced for Hill's discharge. He admitted he
directed Fisher to pull Kurtz' personnel file with the in-
tention of finding something to justify discharging her.
That search revealed a number of shortcomings, but Ad-
ministrator Fisher agreed she would not have fired Kurtz
without having been instructed to do so by Chapman.
The shortcomings on which Chapman now relies include
such things as Kurtz' failure to comply with the dress
code; i.e., occasionally wearing blue jeans instead of
loose-fitting pants, her attendance, her failure to prompt-
ly obtain a tuberculin test on her employment, and some
minor incidents supposedly involving patients about
which the Respondent's proof is very weak. All of these
things were dredged up immediately after Kurtz ques-
tioned Chapman at the November 9 meeting. I have no
difficulty in concluding that had Kurtz not asked her
questions Chapman would not have begun searching for
excuses to discharge her.
2. Analysis and conclusions
Having concluded that Kurtz was discharged because
she asked questions regarding the Respondent's reasons
for discharging Broz and Hill, followed by a suggestion
that the reasons could not be true, the only question
which remains is whether or not that conduct violates
Section 8(a)(1) of the Act. I conclude that it does. The
Board has held on numerous occasions that Section 7 of
the Act protects employees who, in the presence of
other employees, question their employer regarding
terms and conditions of employment. Quite clearly such
questions are directed at determining what those condi-
tions are so that, if necessary, employees may intelligent-
ly assess the need to engage in activities for their mutual
aid or protection. Stifling such questions interferes with
the right. See, for example, Prescott Industrial Products,
205 NLRB 51 (1973); Markle Mfg. Co., 239 NLRB 1353,
1354 (1979); Howell Metal Co., 243 NLRB 1136 (1979);
Pepper Packing Co., 243 NLRB 215 (1979). Cf. NLRB v.
Southern Plasma Corp., 626 F.2d 1287 (5th Cir. 1980). It
follows that the Respondent violated Section 8(a)(1) of
the Act when on November 10 it discharged Kurtz.
Ill. THE REMEDY
Having found that the Respondent has engaged in vio-
lations of Section 8(a)(1) of the Act by discharging its
employee Sundra Kurtz for exercising her Section 7
right to inquire about the terms and conditions of em-
ployment, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. The
affirmative action shall include an order requiring the
244
AUTUMN MANOR
Respondent to immediately offer Kurtz reinstatement to
her former job or, if it no longer exists, to a substantially
equivalent job, and to make her whole for any loss of
pay she may have suffered by reason of the discrimina-
tion aganist her. Backpay and interest thereon shall be
computed on a quarterly basis in the manner prescribed
by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977).
See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and the entire record in this
case, I make the following
CONCLUSIONS OF LAW
1. The Respondent, Autumn Manor, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(aX)(1) of the Act
when on November 10, 1981, it discharged its employee
Sandra Kurtz because she engaged in activities protected
by Section 7 of the Act.
3. The Respondent did not violate Section 8(a)(1) of
the Act when on November 9, 1981, it discharged its
employees Dorothy Broz and Maxine Hill.
On the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record' 6 in this
case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended
ORDER' 7
The Respondent, Autumn Manor, Inc., Florence,
Kansas, its officers, agents, successors, and assigns, shall
:6 If any independent 8(aX)) violations may be seen from this record,
the parties are in agreement that they have been remedied by the settle-
ment agreement in Cases 17-CA-10470-1 and 17-CA-10470-2 now
closed on compliance.
"7 If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Discharging employees because they ask questions
regarding the terms and conditions of their employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately offer Sundra Kurtz reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent job, without prejudice to her senior-
ity or any other rights and privileges and make her
whole, with interest, for lost earnings in the manner set
forth in that section of this Decision entitled "The
Remedy," dismissing, if necessary, any employee who re-
placed her.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all of the records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Florence, Kansas facility copies of the
attached notice marked "Appendix." 18 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by its authorized represent-
ative, shall be posted immediately upon receipt and main-
tained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that said notices are not al-
tered, defaced or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply.
IT IS FURTHER ORDERED that the remainder of the
complaint be, and hereby is, dismissed.
"U If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
245