Bryant Health Center, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 2009

353 N.L.R.B. 739 (N.L.R.B. 2009)

BRYANT HEALTH CENTER, INC.
353 NLRB No. 80
739
Bryant Health Center, Inc. and Teamsters Local Un-
ion 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 Board2 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,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 rec-
ommended Order of the administrative law judge as

1 On August 26, 2008, the judge issued an errata correcting two sub-
paragraphs of his recommended Order and substituting a new notice.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We affirm the judge’s finding that the Respondent violated Sec.
8(a)(1) by discharging Christina Cox. We find it unnecessary to pass
on his finding that the discharge also violated Sec. 8(a)(3), inasmuch as
the additional finding would be cumulative and would not materially
affect the remedy for the discharge.
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(1) by proscribing employee discussion of salaries, wage increases,
and performance evaluations, and by threatening discipline for engag-
ing in such protected concerted discussion, Member Schaumber relies
solely on the judge’s finding that even if the Respondent established a
legitimate patient care justification for some restriction, its rules were
overbroad in application.
4 The General Counsel seeks compound interest computed on a quar-
terly basis for any backpay awarded. Having duly considered the mat-
ter, we are not prepared at this time to deviate from our current practice
of assessing simple interest. See, e.g., Glen Rock Ham, 352 NLRB 516
fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005).
modified and set forth in full below and orders that the
Respondent, Bryant Health Center, Inc., Ironton, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining overly broad rules prohibiting solicita-
tion and distribution in its personnel policy addendum.
(b) Maintaining an overly broad confidentiality rule
prohibiting employees from discussing their salary, per-
formance appraisals, and wage increases with other em-
ployees.
(c) Telling employees that they cannot discuss their
performance appraisals, wage increases, and discipline
with other employees.
(d) Threatening employees with discipline and dis-
charge 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 disci-
pline or other terms and conditions of employment with
other employees.
(g) In any like or related manner interfering with, re-
straining, 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 con-
tained in the personnel policy addendum are rescinded,
void, of no effect and will not be enforced. Further no-
tify all employees in writing that the Respondent will not
prohibit employees from soliciting and distributing mate-
rial 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 dis-
cussing their salary, performance appraisals, and wage
increases with other employees, is rescinded, void, of no
effect and will not be enforced. Further notify all em-
ployees in writing that the Respondent will not prohibit
employees from discussing their salary, performance
appraisals, wage increases, and discipline with other em-
ployees 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 law-
ful 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD740
(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 equiva-
lent 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 dis-
charge, 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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 Ironton, Ohio, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 1, 2003.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

5 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 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 bene-
fit 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 ad-
dendum.
WE WILL NOT maintain an overly broad confidentiality
rule prohibiting you from discussing your salary, per-
formance appraisals, wage increases, or other terms and
conditions of your employment with other employees.
WE WILL NOT tell you that you cannot discuss your per-
formance appraisals, wage increases, discipline, and
other terms and conditions of your employment with
other employees.
WE WILL NOT threaten you with discipline and dis-
charge 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 ac-
tivities 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 pro-
hibit you from soliciting and distributing material in a
manner protected by the Act.
BRYANT HEALTH CENTER, INC. 741
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 pro-
tected 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 provi-
sions; or publish and distribute to all current employees a
revised personnel policy addendum that (1) does not con-
tain 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 for-
mer 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 dis-
charge 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 Dublin, Ohio, for the Respondent.
Rick Kepler and Ronnie Cox, of Canton, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Ironton, Ohio, on March 4 through 6, 2008. The origi-
nal charge in Case 9–CA–43747 was filed by Teamsters Local
Union No. 92, General Truck Drivers and Helpers affiliated
with the International Brotherhood of Teamsters (the Union) on
July 31, 2007,1 against Bryant Health Center, Inc. (the Respon-
dent). That charge was amended on September 4. The charge
in Case 9–CA–44012 was filed by the Union on November 29.

1 All dates are 2007, unless otherwise indicated.
On January 2, 2008, the Regional Director for Region 9 of the
National Labor Relations Board (the Board), issued an order
consolidating cases, consolidated complaint, and an order re-
scheduling hearing. At the onset of the trial, the complaint was
amended to add an additional violation of Section 8(a)(1) of the
National Labor Relations Act (the Act).
The amended consolidated complaint alleges that the Re-
spondent’s supervisors and agents, at all material times, inter-
fered 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 em-
ployees not to discuss their performance appraisals with other
employees; threatening employees with discipline if they dis-
cussed their performance appraisals and raises with other em-
ployees; threatening to reduce employees’ wages if they se-
lected union representation by implying that a movie viewed by
the employees stated that wages could be reduced if they se-
lected a union; and creating the impression among its employ-
ees 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 af-
firmative 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 de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has been engaged in the op-
eration of a nursing home at its facility in Ironton, Ohio. Dur-
ing the 12-month period ending January 2, 2008, Respondent in
conducting its operations delivered gross revenue in excess of
$100,000. During that same time period, Respondent in con-
ducting its operations, purchased and received at its Ironton,
Ohio facility goods valued in excess of $50,000 directly from
points outside the State of Ohio. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD742
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 regis-
tered 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 author-
ity 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 indi-
vidual need possess only one of the enumerated indicia of au-
thority 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. Oak-
wood 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 giv-
ing significant overall duties, i.e., tasks, to an employee.” 348
NLRB at 689.
The Respondent does not currently have written job descrip-
tions for the LPN and the STNA positions. (Tr. 552–553.) The
previous job descriptions were not offered into evidence, as-
suming 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 STNAs 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 conten-
tion 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 in-
formation 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 infor-
mation 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, a 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 cer-
tain residents need certain things, you know, we’ll direct
them to, you know, take care of certain needs of the resi-
dents or, you know, passing ice, which is part of the rou-
tine 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 re-
quired the LPN must select an STNA from a “mandate list,”
that is prepared by Moore, the administrative assistant to Mor-
ris. The Respondent requires that a STNA selected from the
mandate list work the overtime.
BRYANT HEALTH CENTER, INC. 743
Morris testified in a general manner that he “observed” a
situation in which a 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 a 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 a LPN would
find somebody whether it was “their assigned person or not.”
Morris also avers that the LPNs were exercising their own in-
dependent judgment and discretion when he observed the fore-
going. (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 responsi-
bility to assign aides to particular patients. The Board charac-
terized the matching of a patient’s needs to the skills and spe-
cial 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 na-
ture or severity of the patient’s conditions,” when making as-
signments, in this case there is no substantive evidence that the
LPNs ever matched a resident’s needs with the “skills and spe-
cial training” of a STNA. (Id. at 689, 695.)
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 Health-
care. In Croft Metals, decided the same day as Oakwood
Healthcare, the Board applied the Oakwood Healthcare ana-
lytical framework to the occasional switching of tasks among
employees by the lead person. The Board found that the reallo-
cating 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.’” Id. at 722 (internal citation omitted). Similarly,
the evidence in Croft Metals, as here, establishes that the em-
ployees “generally perform the same job or repetitive tasks on a
regular basis and once trained in the position, require minimal
guidance.” LPN Lisa Harmon credibly testified that she has the
authority to transfer a STNA who is working with her in the
“front,” temporality to the back, if the back is short a STNA. It
is evident from her testimony that this action is nothing more
than the “mere equalization of workloads,” which the Board
has found does not require the exercise of independent judg-
ment. Oakwood Healthcare, supra at 690 fn. 12. Based on the
foregoing I find that the Respondent has failed to adduce evi-
dence sufficient to establish that the responsibilities carried out
by the LPNs meet the Oakwood Healthcare definition of “as-
sign.”
2. Responsible direction of STNAs
In Oakwood Healthcare, the Board interpreted the phase “re-
sponsibly 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 per-
son directing the performance of a task must be accountable for
its performance. Further, the Board held that to establish ac-
countability, “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.” Id. at
692. In the health care setting, “direction” may be established
by evidence that charge nurses oversee nursing assistants’ job
performance and act to correct them when they do not follow
proper procedures or provide adequate care, or that the charge
nurses direct assistants to perform certain tasks such as clipping
residents’ toe and fingernails, emptying catheters, or changing a
resident who is incontinent. Golden Crest Healthcare Center,
348 NLRB 719 (2006).
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 wan-
dered 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 fail-
ing 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 ac-
tions of the STNAs. The Respondent relies on the testimony of
Pancake and Jackson. Pancake claims that the LPNs get in
trouble if the STNAs do not do their work. She admits that her
evaluations have never contained any comments regarding the
performance of the STNAs. Pancake acknowledged that she
did not know if the STNA’s performance had any effect on her
evaluations. Jackson merely states that if the STNAs “don’t do
their job it falls back on myself.” (Tr. 535–536, 392.) Thus,
there is no evidence that LPNs may be disciplined, receive poor
performance ratings, or experience any material consequences,
positive or negative, to their terms and conditions of employ-
ment as a result of their performance in directing the STNAs.
Nor is there any evidence that the Respondent has ever in-
formed the LPNs that material consequences could result from
their performance in directing the STNAs. Based on the fore-
going, I find that the Respondent has not shown that the LPNs
face “a prospect of adverse consequences” and thus are held
accountable for their actions in directing the STNAs. Accord-
ingly, I find that the LPNs do not possess the authority to re-
sponsibly direct the STNAs and thus, it is unnecessary to ad-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD744
dress the issue of whether they exercise independent judgment.
Lynwood Manor, 350 NLRB 489, 490–491 (2007).
Notwithstanding the foregoing, I am mindful that the Re-
spondent specifies “not acting as a supervisor” on the Cox dis-
charge 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 re-
solve complaints and grievances brought to them by the
STNAs. Lisa Harmon testified, without elaboration, that the
grievances concerned “simple things.” Pancake testified, with-
out specificity, that she would take a “major thing” to the DON
or the ADON. Jackson specifically testified that he resolves
problems between the STNAs not getting along with each
other, and between the residents and the STNAs not getting
along with each other. He testified that he resolves these con-
flicts by “switching” the adversaries.
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 em-
ployees 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 con-
flicts. Network Dynamics Cabling, 351 NLRB 1423, 1425
(2007). According, I find that the LPNs do not possess author-
ity 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 follow-
ing 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 Bon Harbor Nursing &
Rehabilitation Center, 348 NLRB 1062 (2006), in support of its
argument. There, the Board found pertinent the respondent’s
use of a progressive disciplinary system whereby the employ-
ees automatically receive increasingly severe punishment for
rule infractions based on the class of infractions committed and
the employee’s prior disciplinary record.
A discipline system is set forth in the Respondent’s person-
nel 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 progres-
sive levels of disciplinary action, there may be circumstances
when discipline is imposed that is different than the stated pro-
gression 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 appro-
priate under the circumstances.” The document then lists ex-
amples of minor, major, and intolerable offenses. At the bot-
tom of each list is a statement of consequences. A minor of-
fense 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 intoler-
able 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, de-
scribe 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 evi-
dence demonstrates that “warning” is an inaccurate term.
Nothing in the documents “warn” of any negative conse-
quences, let alone of “increasingly severe punishment” for con-
tinued 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 fold-
ers 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. Id. at 1118 (discipli-
nary notice referencing prior warnings show role played in
employees discipline and affected job status).
Based on the foregoing I find that the Respondent has failed
to prove that the completion of the personnel action forms indi-
cates 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
BRYANT HEALTH CENTER, INC. 745
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 mean-
ing 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 pur-
pose 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 con-
tains 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 Respon-
dent 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; Laid-
law 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 ar-
ticulated in the handbook and not in the addendum. The ad-
dendum merely provides the classification of policy violations
for the violations listed in the associate handbook and the sup-
plementary policies in the personnel policy addendum. (R. Br.
at 47.) The personnel policy addendum referenced by the Re-
spondent 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 inclu-
sive.” 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 of-
fenses, is the heading “Employee Rules and Regulations for
Bryant Health Center.” The unlawful solicitation and distribu-
tion rules are identical to those alleged in paragraph 5 of the
complaint and are set forth above.
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 pro-
nouncements create confusion among employees concerning
what is permitted, and the confusion itself has the effect of
unlawfully discouraging employees from engaging in the pro-
tected activity. See Farr Co., 304 NLRB 203, 215 (1991) (em-
ployer 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 prom-
ulgator of the rule. Lafayette Park Hotel, 326 NLRB 824, 828
(1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999); Nor-
ris/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 evalua-
tions sometime in September 2007. In its answer, the Respon-
dent admits, and I find, that Laura Henson, the DON, orally
instructed employees not to discuss their performance apprais-
als 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 testi-
mony 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 indistin-
guishable from this case. I agree in part with that statement but
I also believe that the Respondent’s justification based on al-
leged “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 frame-
work 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 justifi-
cation outweighs the employees’ Section 7 right. For the fol-
lowing reasons I find that the Respondent has not established
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD746
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 evalua-
tions they “felt” that the employees would discuss the evalua-
tions and that some would “probably” be upset. Henson be-
lieved 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. Mor-
ris 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 even-
tualities, such as what to do about employees who became up-
set 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 em-
ployees 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 dis-
tributed, Henson references unidentified LPNs who reported to
her that STNAs were “bickering” like school kids in the hall-
way. Henson submits that patient care “was going to go down-
hill 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 hall-
way.” 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 a 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 ap-
pears that bickering among STNAS is not unusual. It also ap-
pears that “switching them out” is an effective corrective ac-
tion. I find Henson’s statements in support of the ban on em-
ployee discussion of evaluations to be contradictory and incon-
sistent 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 wit-
ness 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 em-
ployees 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 termi-
nated 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 Re-
spondent 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 feel-
ings. 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 qualifi-
cation or explanation, not to discuss it with anyone.
None of the STNAs testified that Henson explained or quali-
fied the absolute prohibition against discussing their evalua-
tions with other employees. In fact a close reading of Henson’s
testimony shows that she never said that she qualified the pro-
hibition. Her testimony is that she and Morris agreed to pro-
hibit 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 mat-
ter 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 conver-
sation 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 Re-
spondent issued a blanket rule prohibiting the employees from
discussing their evaluations among themselves.
In addition to the foregoing, there is no evidence that any pa-
tient/resident did not receive proper treatment for any reason
during this time period. There is no credible evidence that any
BRYANT HEALTH CENTER, INC. 747
patient/resident or other nonemployee overheard any STNAs
discussing their evaluations. “There is no evidence that the
Respondent prohibited employees from discussing other mat-
ters 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 informa-
tion 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 “confidenti-
ality” and “hurt feelings” by “respect.” Regardless of the
words, the explicit instruction remains the same—do not dis-
cuss among yourselves, at any time, or place,—anything that
has to do with your wages.
The Respondent’s confidentiality rule, like the oral instruc-
tions 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 U.S. 1170 (2006). “It is axiomatic that discussing
terms and conditions of employment with coworkers lies at the
heart of protected Section 7 activity.” St. Margaret Mercy
Healthcare Centers, above at 205. With the foregoing pro-
nouncement in mind I note that the Respondent promulgated
the unlawful rules only 2 months after putting an end to a nas-
cent union organizing campaign. Jeannette Corp., 532 F.2d
916, 919 (3d Cir. 1976), enfg. 217 NLRB 653 (1975)
(“[D]issatisfaction due to low wages is the grist in which con-
certed activity feeds. Discord generated by what employees
view as unjustified differentials also provide the sinew for per-
sistent concerted action.”)
Accordingly, I conclude that the oral instructions issued by
Morris, Henson, and McClain, prohibiting employees from
discussing among themselves their evaluations, explicitly in-
fringe 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 in-
creases in violation Section 8(a)(1). The Respondent also vio-
lated 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, Mor-
ris followed STNAs Sudderth and Spencer as they left the facil-
ity. 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 wit-
nesses 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 Union with any other employees.” (Tr. 683.) Likewise the
Respondent’s brief contains only a general denial. (R. Br. at
43.) I find that Morris made a comment to the employees indi-
cating that he knew that they were going to attend a union
meeting that was scheduled for that evening. Based on his
statement I find that the employees reasonably could assume
that their protected concerted activities were being monitored.
Mountaineer Steel, Inc., 326 NLRB 787, 787 (1998), enfd. 8
Fed. Appx. 180 (4th Cir. 2001). Moreover, it is clear that the
only reason Morris followed the employees out of the building
was to make them aware that he knew about their protected
concerted activity. Under the circumstances, I find his un-
denied and unexplained conduct “out of the ordinary.” See
generally Loudon Steel, Inc., 340 NLRB 307, 313 (2003).
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 un-
ionization. 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 testi-
fied 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 wor-
ried 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
Union,” and Morris said, “[Y]es.” On cross-examination, she
admitted making “a mistake,” and testified that the question
was asked at the end of the viewing. She also added that the
question was with reference to the movie and that when Morris
answered he also referenced the movie. (Tr. 179–180, 208–
209.)
I discredit the General Counsel witnesses for the following
reasons. Sudderth’s “mistake” certainly indicates, at the very
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD748
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 inci-
dent. I find her memory to be unreliable, her testimony incon-
sistent 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 state-
ment—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 testi-
mony 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 credi-
bly testified that there was a part of the movie where the narra-
tor suggests that in negotiations the only issue a union can
guarantee is the Federal minimum wage rate. I credit his testi-
mony that he responded to Workman’s question with a para-
phrase 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 wit-
ness. She did not recall any statements made by Morris regard-
ing 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 inci-
dent.
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 Co. & Earthgrains, 348 NLRB 1133 (2006).
Accordingly I recommend that paragraph of the complaint be
dismissed.
D. The 8(a)(1) and (3) Allegations
Cox was hired as a LPN by the Respondent in 2005. There-
after, 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 arrange-
ments were finalized and the meeting was scheduled for July 12
at 3 p.m. in a restaurant in Ironton, Ohio. Cox and other em-
ployees disseminated this information to the work force.
On July 6 Moore received an anonymous telephone call.
The caller said that Cox was trying to organize the employees
and that a union meeting was scheduled for July 12. Moore
told Morris who said, “[L]et’s keep this to ourselves. If she is,
she is.” On the afternoon of July 6, Morris sent an e-mail to his
supervisor, Sally Grant. He wrote about the meeting and iden-
tifies the employee organizer as a LPN who is a poor per-
former. He writes that he and the DON were ready to let her go
the previous Monday (July 2) but they delayed doing so be-
cause another LPN resigned. He asked Grant if she had any
experience with union organizing. The upshot of his contact
with Grant is that she sent him the video and told him to show
it to those employees who were interested.
The union meeting was held with three employees in atten-
dance.
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 resi-
dents 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 com-
plied. 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 conver-
sation 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 confron-
tation 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 in-
structed Cox not to discuss her discipline with other employees.
Based on the foregoing counsel for the General Counsel sub-
mits that the Respondent established an overly broad confiden-
tiality rule. The Respondent does not contend otherwise. It
BRYANT HEALTH CENTER, INC. 749
does argue that Henson’s order was a one-time occurrence that
was necessitated by the magnitude of the task Cox was per-
forming 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 dis-
credit Henson’s testimony on this matter and reject the Respon-
dent argument. See generally Verizon Wireless, 349 NLRB
640, 657–658 (2007).
Accordingly, I find that the Respondent maintained an over-
board 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. A 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 of-
fice. 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 explain-
ing 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 violat-
ing is the unlawfully overbroad confidentiality rule not to dis-
cuss 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 Re-
spondent’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 vio-
lates 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 dis-
charge 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 dis-
charge 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 motiva-
tion. 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 em-
ployer 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 dis-
charge 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 em-
ployer 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 employ-
ees, 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 req-
uisite 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 expla-
nation forthcoming from the Respondent for this obvious in-
consistency. Thus, I find that the reason offered by the Re-
spondent 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. Ac-
cordingly, 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 rea-
son 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD750
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 dis-
charge 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 de-
cided to discharge Cox on June 29. On that date a LPN unex-
pectedly 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 replace-
ment 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 train-
ing 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 ear-
liest that it could have discharged Cox and remained in compli-
ance 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 con-
versation at the timeclock regarding the dress code. The Re-
spondent 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 termi-
nated 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 dis-
cussed 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 super-
visor; (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 disre-
spectful to a STNA; and (7) is a report that employees in house-
keeping 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 rep-
rimanded for leaving the facility, having a negative attitude,
being disrespectful to a 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 U.S. 843; All Pro Vend-
ing, 350 NLRB 503, 509 (2007). Nor am I questioning the
validity of the accusations against Cox. I do question the truth-
fulness of the Respondent’s claim that Morris and Henson had
decided to terminate Cox on June 29.
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 pro-
gress. Consistent with this view is our the notes Henson wrote
regarding the investigation she was conducting about Cox be-
ing disrespectful to a STNA. At the top of the first page of the
investigation is written “on 6/29/07.” The last entry is report-
edly made “a few days after the 6–29–07.” (R. Exh. 13.) Be-
cause 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 Re-
spondent 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 hap-
pened 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 facil-
ity.” (R. Exh. 12 at bottom of 3.) There is no mention of any
concern about mistakes or that Henson took any action con-
cerning 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 be-
cause 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 Re-
spondent would be better served by using progressive discipline
in an attempt to change the behavior of Cox rather than resort-
ing to discharge.
I conclude from the foregoing that the Respondent’s conten-
tion that it had made the decision to discharge Cox on June 29,
BRYANT HEALTH CENTER, INC. 751
is false. Based on the foregoing I find that Morris and Henson
were going to meet on July 2 to continue their preliminary dis-
cussion regarding the continued employment of Cox, not to
discharge her.
That discussion was made moot by the unexpected resigna-
tion of another LPN. I do not agree, as argued by the Respon-
dent 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 Respon-
dent 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 medica-
tions 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 du-
ties, 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 satis-
fied 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 re-
quired to conduct an investigation of the facts surrounding what
was said by whom on July 21. The Respondent offers not ex-
planation 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 em-
ployer 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 vio-
lated 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 confi-
dentiality rule prohibiting employees from discussing their
salary, performance appraisals, and wage increases with other
employees.
(c) By telling employees that they cannot discuss their per-
formance 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 ac-
tivities 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 un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate 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 pro-
tected by the Act.
[Recommended Order omitted from publication.]