Crestfield Convalescent Home/Fenwood Manor

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 525 (N.L.R.B. 1989)

CRESTFIELD CONVALESCENT HOME
Manchester Health Center, Inc. d/b/a Crestfield
Convalescent Home/Fenwood Manor and New
England Health Care Employees Union , District
1199 , NUHHCE, AFL-CIO. Case 39-CA-2982
June 15, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JOHANSEN , CRACRAFT, AND
DEVANEY
On December 16, 1987, the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding.' The Board found, inter alia, that the
Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining an overly broad, dis-
criminatory, and ambiguous no-union -solicitation/-
discussion rule on and after February 5, 1986. The
Board further found that the Respondent violated
Section 8 (a)(3) by disciplining employees Carol
Chesky and Suzanne Starling pursuant to the un-
lawful rule. On petition for review and cross-appli-
cation for enforcement of the Board's Order, the
United States Court of Appeals for the Second Cir-
cuit set aside the Board's finding that the rule vio-
lated the Act but remanded to the Board for fur-
ther consideraton of whether Chesky and Starling
were properly disciplined under the valid rule.2
The Board thereafter accepted the court's remand
and notified the parties that they could file state-
ments of position with the Board on remand. The
General Counsel and the Respondent filed state-
ments of position.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On further examination of the issue presented in
light of the entire record, including the court's
opinion and the parties' statements , the Board has
decided to modify its original Decision and Order
as set forth and explained below.
The Respondent operates a nursing home in
Manchester, Connecticut. The Union was certified
on October 1, 1985, as the bargaining representa-
tive of the Respondent's service and maintenance
employees . Shortly thereafter, a union -sponsored
strike commenced and continued until February 5,
1986,3 when the striking employees returned to
work. The strike was marked by numerous allega-
tions of acts of violence committed by both strikers
and nonstrikers against each other . In an effort to
effectuate a harmonious and peaceful return to the
job and to avoid a disruptive impact on the pa-
' 287 NLRB 328
2 Manchester Health Center Y. NLRB, 861 F.2d 50 (2d Cir 1988).
8 All dates are in 1986 unless otherwise noted
525
tients, the Union agreed to the following rule,
which the Respondent announced to all employees
on February 5:
There will be no solicitation or talk of union
activities in patient areas or on work time,
only on breaks or lunch time-if found doing
so there will be an immediate warning given.
In addition to the poststrike rule, the Respondent
has maintained a published rule in its employee
manual as well as an unwritten understanding that
granted employees a certain degree of discretion
regarding the manner and timing in withdrawing
from "problem" discussions with patients. Thus,
under the heading "Suggestions" in the employee
manual , rule 6 states, "Do not discuss hospital
problems or your problems with the patients or
visitors . Be considerate as possible , but also say
little as possible about these matters." Consistent
with this rule, the Respondent 's administrator,
Gary Spieker, testified that when confronted with
the situation in which a patient initiates a discussion
of union activities employees should "try to disen-
gage to be assumed that the patient's condition has
to be protected. So immediately-you don't try to
stop what you're doing, but try to change the sub-
ject."
On February 5, Carol Chesky, a returning strik-
er, received a verbal warning for allegedly violat-
ing the poststrike rule against union solicitation or
discussion by talking to two patients in their rooms
about events during the strike. According to
Chesky's credited testimony regarding the events
of February 5, she entered the rooms of patients
Thelma MacLaughlin and Russell Rice to adminis-
ter geriatric assistance . Seeing her for the first time
in more than 3 months since the strike began, each
greeted her warmly and asked her questions such
as how the strike went, was she happy to be back,
did all the strikers return, was she treated well by
the Union while on strike, and how her children
were. To each question Chesky gave a brief reply
before proceeding on to the rooms of other pa-
tients in performance of her duties.
For her conduct on February 5, Chesky received
her first "verbal" warning, a written memorializa-
tion, which read "[t]alking to patients R. Rice and
T. MacLaughlin about union activities." On Febru-
ary 10 and March 6, she received two more writ-
ten warnings for rule infractions by soliciting em-
ployee support for the Union in patient areas. The
Respondent's progressive disciplinary policy pro-
vides for termination upon receipt of one verbal
and two written warnings. The Respondent dis-
charged Chesky pursuant to this policy on March
6.
295 NLRB No. 60
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Also on March 6, former striker Suzanne Star-
ling received a verbal warning for having a con-
versation about the Union with a visitor in a pa-
tient area hallway . Starling testified credibly that
she was exiting a patient 's room when she encoun-
tered in the corridor a life-long friend who was vis-
iting and searching for a certain patient 's room.
During the course of their conversation , Starling
was asked "how is everything" and "what's new."
Starling replied, "Well you know, the Union is in
now." Spieker overheard this statement and caused
a verbal warning to be issued for "Solicitation of
visitors in hallway of Wing I during working
hours."
As noted above , the Board in its original deci-
sion found that the Respondent's February 5 no-
union-solicitation/discussion rule was overly broad,
ambiguous , discriminatory , and thus invalid on its
face. The Board further found that any disciplinary
action taken against Chesky and Starling pursuant
to the unlawful rule was a fortiori unlawful. The
Second Circuit disagreed with the Board and held
that "where a health-care facility has been in-
volved in a bitter and divisive strike, it may, as part
of a strike settlement , agree with the Union to limit
discussion of union affairs to nonpatient areas
during non-work time."4 Having found that the
rule was a reasonable , nondiscriminatory restriction
on the discussion of union affairs , the court also
found that the warnings given by Chesky on Feb-
ruary 10 and March 6 were lawful because her
conduct on those dates was undisputedly covered
by the lawful rule. The court remanded this case to
the Board, however, because it was unclear wheth-
er the discussions of union activities by Chesky on
February 5 and by Starling on March 6 actually
violated the rule. Furthermore, as to Chesky, the
court stated that if the warning based on her con-
duct on February 5 was invalid, then her discharge
was also invalid because she would not have had
the requisite number of lawful warnings under the
Respondent 's progressive disciplinary system.5
In compliance with the court' s remand, we
accept as the law of this case the court's finding
that the February 5, 1986 rule agreed to by the Re-
spondent and the Union was valid. We have recon-
sidered the application of the rule to the conduct
of Chesky and Starling on the dates in question.
We find that Chesky did not violate the rule on
February 5, and that the Respondent therefore vio-
lated Section 8(a)(3) by warning her on that date
4 861 F . 2d at 51
5 The Respondent argues that , even if the February 5 discipline was
invalid , Chesky was discharged after three instances of valid discipline
because the March 6 discipline constituted two separate violations. This
agreement is plainly contrary to the court 's findings of fact and we there-
fore reject it.
and by relying in essential part on that warning
when subseqently discharging her on March 6. On
the other hand, we find that the Respondent law-
fully warned Starling on March 6.
We agree with the judge's finding, in the deci-
sion adopted in relevant part by the Board's origi-
nal decision, that the February 5 conversation be-
tween Chesky and patients cannot sensibly be char-
acterized as a breach of the Respondent's rule
against union solicitation or discussion . As noted
earlier, the purpose of that rule was twofold: (1) to
avoid potentially explosive encounters between
strikers and nonstrikers and (2) to avoid upsetting
or otherwise disrupting patients. As the incidents of
February 5 involved exchanges between patients
and an employee, the rule's first purpose was not
involved. The other purpose of the rule must be
evaluated in light of the Respondent 's related
policy affording discretion to employees in making
tactful withdrawals from potentially upsetting dis-
cussions initiated by patients . By giving brief re-
sponses to the questions asked her by MacLaughlin
and Rice without further attempting to prolong the
conversations, Chesky conformed her conduct to
the Respondent's discretionary policy. According-
ly, we find from the foregoing circumstances that
Chesky did not contravene the poststrike rule limit-
ing union solicitation and discussion on February 5.
We therefore conclude that the warning she re-
ceived that day for the otherwise protected men-
tion of union and strike activities violated Section
8(a)(3) and ( 1), as did her subsequent discharge
grounded on the unlawful warning.
We reach a different result, however, with re-
spect to the verbal warning issued to Suzanne Star-
ling on March 6. Unlike the Chesky incident, the
question presented to Starling was in no way
union-related , did not involve patient relations, and
did not necessitate Starling 's interjection, albeit in-
cidental , of union matters. It was not unreasonable,
therefore, for the Respondent to interpret Starling's
conduct as an attempt, contrary to the February 5
rule, to engage her visiting friend in a discussion of
the Union while on worktime in a patient area. In
sum, we conclude that the Respondent did not vio-
late the Act by warning Starling for her conduct
on March 6.
Accordingly, we shall enter a new Order as set
out in full below , incorporating the modifications
made to the judge's recommended Order in our
original decision and further modifying the recom-
mended Order consistent with the above discus-
sion.6
° The Board 's original Decision and Order adopted without comment
the judge's recommendation , also without comment, of a remedial visita-
Continued
CRESTFIELD CONVALESCENT HOME
ORDER
The National Labor Relations Board orders that
the Respondent , Manchester Health Center, Inc.
d/b/a Crestfield Convalescent Home/Fenwood
Manor , Manchester, Connecticut , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Improperly applying its valid no-union-
solicitation/discussion rule by warning or discharg-
ing employees engaged in protected discussion of
union and strike matters in a manner not proscribed
by this rule.
(b) Refusing to meet and/or delaying in meeting
with the Union to discuss an employee grievance
concerning discipline and/or discharge.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the purposes of the Act.
(a) Offer Carol Chesky immediate and full rein-
statement to her former job or , if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed , and make
her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
her in the manner set forth in the remedy section
of the judge's decision attached to the Board's
original Decision and Order.
(b) Remove from its files any reference to the
unlawful warning issued to Carol Chesky on Feb-
ruary 5, 1986 , and to her unlawful discharge on
March 6, 1986; redesignate in its records Carol
Chesky's lawful warning on February 10 as her
first verbal warning and her lawful warning on
March 6 as her first written warning ; and notify
her that this has been done and that the unlawful
warning and discharge will not be used against her
in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
tonal clause authorizing the Board and its representatives "to obtain dis-
covery from the Respondent , its officers , agents , successors and assigns,
or any other person having knowledge concerning any compliance
matter , in the manner provided by the Federal Rules of Civil Proce-
dure." Subsequent to the issuance of the Board 's original Decision and
Order , the Board held in Cherokee Marine Terminal, 287 NLRB 1080
(1988), that it would not include visitatorial clauses on a routine basis in
its remedial orders but it would "continue to grant visitatonal rights, on a
case-by-case basis , when the equities demonstrate a likelihood that a re-
spondent will fail to cooperate or otherwise attempt to evade compli-
ance ." 287 NLRB at 1083 . In the absence of any evidence indicating a
likelihood in this case that the Respondent will fail to cooperate or other-
wise attempt to evade compliance , we shall delete the visitatorial clause
from the original Order
527
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Manchester, Connecticut facility
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after being signed
by the Respondent 's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
' 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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.
WE WILL NOT improperly apply our February 5,
1986 no-union-solicitation/discussion rule by warn-
ing or discharging employees engaged in protected
discussion of union and strike matters in a manner
not proscribed by this rule.
WE WILL NOT refuse to meet and/or delay in
meeting with the Union to discuss an employee's
grievance concerning discipline and/or discharge.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL offer Carol Chesky immediate and full
reinstatement to her former job or , if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights and privileges previously enjoyed, and WE
WILL make her whole, with interest , for any loss of
earnings and other benefits resulting from her un-
lawful discharge.
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL remove from our files any reference
to the unlawful warning issued to Carol Chesky on
February 5, 1986 , and to her unlawful discharge on
March 6 , 1986, and WE WILL designate in our
records Carol Chesky 's lawful warning of Febru-
ary 10 , 1986, as her first verbal warning and her
lawful warning of March 6, 1986 , as her first writ-
ten warning and WE WILL notify her that this has
been done and that the unlawful warning and dis-
charge will not be used against her in any way.
MANCHESTER HEALTH CENTER, INC.
D/B/A CRESTFIELD CONVALESCENT
HOME/FENWOOD MANOR