Swope Ridge Geriatric Center

National Labor Relations Board - Administrative Judge Opinions

Mar 1, 2007

17-CA-023664 (N.L.R.B. Mar. 1, 2007)

JD(SF)-08-07
Kansas City, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
CARE CENTER OF KANSAS CITY d/b/a
SWOPE RIDGE GERIATRIC CENTER
and Cases 17-CA-23664
17-CA-23697
17-CA-23680

SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 2000, affiliated with SERVICE EMPLOYEES
INTERNATIONAL UNION
Lyn Buckley, Esq., Overland Park, KS,
for the General Counsel
Rhonda Smiley, Esq., of McDowell, Rice, Smith
& Buchanan, Kansas City, MO, for the
Respondent
Gussie Winston, Business Representative,
Kansas City, MO., for the Union
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing in this
matter was held before me in Overland Park, Kansas on December 12 and 13, 2006. The initial
charge in Case 17-CA-23664 was filed by Service Employees International Union Local 2000,
affiliated with Service Employees International Union (Union) on August 28, 2006. Thereafter
an amended charge was filed and a complaint, dated October 25, 2006, was issued.
Thereafter related charges were filed, and on November 28, 2006 the Regional Director for
Region 17 of the National Labor Relations Board (Board) issued an Order and notice of hearing
alleging violations by Care Center of Kansas City d/b/a Swope Ridge Geriatric (Respondent) of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (Act). The
Respondent, in its answer to the complaint, duly filed, denies that it has violated the Act as
alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from Counsel for the General Counsel (General Counsel) and counsel for
the Respondent. Upon the entire record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following:
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Findings of Fact
I. Jurisdiction
The Respondent is a corporation with its office and principal place of business located in
Kansas City, Missouri where it is engaged in the business of operating a nursing home. In the
course and conduct of its business operations the Respondent annually derives gross revenues
in excess of $100,000, and annually purchases and receives goods valued in excess of $5,000
directly from points outside the state of Missouri. It is admitted and I find that the Respondent is,
and at all material times has been, an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
II. The Labor Organization Involved
It is admitted, and I find, that The Union is and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the Act,
III. Alleged Unfair Labor Practices
A. Issues
The principal issues in this proceeding are whether employees engaged in protected
activity by participating in strikes called by the Union, and, if so, whether the Respondent
violated the Act by issuing warning notices to employees for failure to call in prior to
participating in such strike activity.
B. Facts
The Union has been the collective bargaining representative of the Respondent’s
employees for a number of years during which the parties have entered into a series of
collective bargaining agreements. The last collective bargaining agreement extended from
May 1, 2003 until April 30, 2006.1
The contract sets forth the collective bargaining unit as follows:
Included: All regular full-time, regular part-time and regular limited part-time
employees of the Employer, including team leaders.
Excluded: Officers and managers, office and clerical employees, skilled craft
workers, all therapy workers and diversional activities employees, all registered
nurses, licensed practical nurses, all other professional and technical employees,
on call employees, guards and supervisors as defined in the National Labor
Relations Act.

1 All dates or time periods hereinafter are within 2006 unless otherwise indicated.
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The unit consists of approximately 40 employees. Most are Certified Nursing Assistants
(CNA’s), who care for the comfort of the residents and assist the residents with certain activities
of daily living such as bathing, dressing and feeding. The unit also includes several Certified
Medical Technicians (CMT’s) who primarily distribute and assist the residents with their
medications.
Negotiations for a new contract took place before and after the expiration of the last
contract and the parties were unable to reach a successor agreement. Insofar as the record
shows the principal area of disagreement concerned the Union’s demand for a wage increase
larger that what the Respondent was offering. As a result the Union engaged in weekend
strikes on two separate occasions.
As the Respondent is a health care institution the Union is required, pursuant to Section
8(g) of the Act, to notify the Respondent of a strike at least ten days prior to such action, and to
provide the date and time that such action will commence. The Union did provide the
appropriate10-day strike notice prior to each anticipated strike action, as well as other
notifications and clarifications, as follows.
On July 14, the Union, in a letter entitled “Ten- Day Notice to Strike,” gave written notice
that a strike would commence on Friday, August 4, at 11:00 p.m.
On August 2, two days prior to the announced strike, the Union sent two separate
notices to the Respondent. One was a “Withdraw Notice” stating the Union was withdrawing
the foregoing strike notice in order to give the Respondent and its agents “the opportunity to
bargain in good faith and settle the CBA between both parties.” The other was another “Ten-
Day Notice to Strike,” stating that a strike would commence on Saturday August 26 at 2:00 p.m.
On August 24, two days prior to the scheduled August 26 strike, the Union advised the
Respondent that the strike would be a one-day (24 hour strike) that would commence at
2:00 p.m. on Saturday, August 26, and end at 2:00 p.m. on Sunday, August 27. Further, the
Union advised the Respondent, “There will be a huge participation of members and outside
supporters including other labor organizations of Change to Win.”2 This 24-hour strike occurred
as scheduled.
On August 28, the day following the end of the first strike, the Union gave the
Respondent another “Ten- Day Notice for a Strike,” stating that it intended to strike again on
Saturday, September 16 at 2:00 p.m.
On September 13, three days prior to the scheduled September 16 strike, the Union
advised the Respondent that the strike would be a one-day (24-hour) strike that would
commence at 2:00 p.m. on Saturday, September 16, and end at 2:00 p.m. on Sunday,
September 17. Again, in this notice, the Union advised the Respondent, “There will be a huge
participation of members and outside supporters including other labor organizations of Change
to Win.” This 24-hour strike also occurred as scheduled.

2 Apparently “Change to Win” is the name given to a coalition of labor organizations established
to promote union solidarity and to assist each other in situations such as the union activities
herein.
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Dorothy Jones, vice-president in charge of nursing services, described the picket line
activity she observed. Jones testified that on August 26, the first day of the first strike, she was
shocked that individuals on the picket line, in the presence of union representatives, were very
loud, that they were yelling profanities and vulgarities through bullhorns, and that they had
sirens going in order to draw attention to their demonstration. This was very disruptive and
disconcerting to the residents of the nursing home, and to the surrounding residences in the
area. According to Jones, individuals yelled through bullhorns, “Dorothy Jones and Patricia
Wyatt,3 we know where you live.” Jones testified she took this as a threat. The sirens went all
day and all night except during the times the police were present in response to the repeated
calls of the Respondent. Thus, the noise only stopped while the police were there. Also,
according to Jones, Michael Brown, vice president of the Union was constantly beating on a
drum and trespassing on Respondent’s property. Some of the residents remained awake,
looking out the windows, as the noise was keeping them from sleeping. On one occasion,
Sterling Brown, a union business agent, said over the bullhorn, “how would they feel if we burn
this …MF’ing building down.”
Jones testified that again, during the September 16-17 strike, an individual on the picket
line yelled, “Dorothy Jones, I know where you live, why don’t you come out and talk to us.”
According to Jones, “The behavior was still just as aggressive and vulgar as it had been the
previous strike,” Again, individuals on the picket line were using the bullhorn, the sirens and the
drum.4 Further, they were blocking the driveway of the facility and would attempt to shove
petitions in automobiles as they entered the driveway. Sometimes cars exiting from the
driveway would stop for inordinate periods of time because the drivers could not tell whether the
siren was from an approaching emergency vehicle. Jones saw one exiting car being banged on
by an individual on the picket line, and observed individuals actually lying down and sprawling
out on the driveway.
No union representatives were called as witnesses to rebut the testimony of Jones.
However, as a rebuttal witness, the General Counsel called Henry Klein, who is a candidate for
Mayor of Kansas City. Kline had been invited by the Union to participate in the picketing, and
did so during both strikes. Klein testified that during the times he spent on the picket line,
namely, about a total of ten hours on three separate occasions, there was sometimes a bullhorn
being used and sometimes a drum. He was not aware of a siren being used. Nor was he
aware of any threats being uttered, or of people lying on the driveway or blocking traffic. He
testified that he “considered it to be a very peaceful rally.”
The testimony of Jones and Klein is not necessarily inconsistent. Klein may simply not
have observed or heard what Jones observed and heard. However the record evidence
indicates that Union Representative Gussie Winston was present on the picket line for
substantial periods of time during both strikes; and although Winston, who entered an
appearance on the record as the designated Union representative, was present throughout the
hearing and was even called as a witness by the Respondent following Jones’ foregoing
testimony, Winston did not rebut the testimony of Jones regarding the picket line and related
conduct during the strike. Accordingly, I credit Jones’ account of the strike activity.

3 Wyatt was apparently another manager or supervisor of the Respondent.
4 However, from questions asked by Respondent’s attorney, it appears that the bullhorn and
siren were not used from 7:00 p.m. on September 16 until the next morning.
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The record shows that of the approximately 40 unit employees, only about 6 or 7
honored the picket lines and/or participated in picketing. Thus, only a few of the individuals on
the picket lines were employees. The Respondent does not contend that any striking
employees, all of whom returned to their regular shifts after the strikes, engaged in picket line
misconduct.
The record also shows that the Respondent was well prepared for the strikes and that
there was no disruption of services and care for the residents. Jones testified that the
Respondent did not know whether employees would work or not during the strike: “There were
employees who told us that they would be there, but we didn’t know who would show up and
who wouldn’t show up. So we had called agency and given them notice that we may be doing
some last minute calls for staffing.”
As noted, the striking employees were not disciplined for picket line misconduct or for
condoning such misconduct. However, those employees who were scheduled to work and had
not notified the Respondent of their intention to be absent from work were given written
disciplinary warnings for failing to adhere to the Respondent’s call-in requirement. Thus, the
Respondent has maintained a long-standing policy of issuing written warnings to employees for
failing to notify the Respondent at least two hours in advance if they will be absent from their
scheduled shift. This rule is designed to provide the Respondent with sufficient opportunity to
obtain alternate fill-in staffing, usually from an outside agency. The record shows that
employees are well-aware of this requirement and of the adverse consequences in the event
they fail to adhere to it, namely, that they will be discharged upon receiving three such written
warnings within an 18-month period, 5
While the Respondent held several employee meetings prior to the strikes, and on
several occasions reminded the employees that they should call in if they intended to miss their
shifts during the strikes, some employees did so and some did not. Those who did not call in
testified either that they believed the Union’s 10-day strike notice constituted sufficient advance
notification, or specifically asked Union Representative Winston what they should do and were
told that the Union’s 10-day strike notice had been made on behalf of all employees and
therefore it was unnecessary for them to individually call in prior to their scheduled shifts. As
noted, only those employees who did not personally call in were given written warnings. The
complaint alleges that such written warnings, under the circumstances, are unlawful.
Jones testified that weekends are extremely difficult to staff as the employees,
generally, prefer not to volunteer for weekend work. For this reason, each employee is required
to work one day every other weekend. Further, for purposes of fairness, so that some
employees will not have to work more weekend shifts than others, employees are required to
make up any weekend work that they miss. Working a weekend shift necessarily results in the
elimination of a weekday shift during that week, so that an employee will not be scheduled to
work more than 40 hours per week. There is one exception to this weekend make-up
requirement: If the employee or a family member is ill and requires care, or if there is some

5 One striker was terminated and sent home for receiving her third such notice. However it was
discovered that this was a mistake because the earliest of her three notices was beyond the 18-
month limitation period and should have been removed from her file. Upon discovering this
mistake the Respondent immediately notified the employee of its error, and the employee was
compensated for the work she missed.
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other immediate problem preventing the employee from working, the employee is customarily
excused from having to make up the missed weekend shift. Requiring employees to make up
for missed weekend shifts is not considered to be a disciplinary measure; rather, it is simply an
attempt to distribute weekend work among the employees in an equitable fashion.
Pursuant to this longstanding weekend shift make-up policy, the Respondent required
those striking employees who missed weekend work to make up the weekend shift that they
missed. As noted, this necessarily resulted in eliminating one of their weekday shifts. The
complaint alleges that requiring strikers to make up missed weekend shifts, under the
circumstances, was unlawful.
C. Analysis and Conclusions
The Respondent maintains that it applied its long-established two hour call-in policy and
its weekend work make-up policy in a routine, non-discriminatory manner, and that it would
have taken the same action against any employee regardless of that employee’s reason for
failing to timely call in. Further, the Respondent apparently argues that the Union’s 10-day
notices were inadequate as a purported substitute for its call-in policy: thus, the purpose of the
policy is to enable the Respondent to know how many employees and which employees,
specifically, will be absent from their shift so that it may obtain alternative staffing; simply
notifying the Respondent of the time and date of a strike in no way provides such critical
information.
The Respondent also maintains that the employees’ participation in the strikes, under
the circumstances, did not constitute protected concerted activity, and that it was privileged to
treat the employees as if they were non-strikers and the strikes simply had not occurred;
therefore, whatever discipline it imposed for the employees’ failure to timely call in was not
imposed in the context of lawful strike activity. Thus, the Respondent first argues that the
misconduct of the Union’s business representative on the picket lines, particularly by disturbing
the nursing home residents with loud noises and causing them loss of sleep, and by uttering
veiled threats of possible harm to Respondent’s managers and facilities, taints the entire strike
and renders unprotected any employee’s participation in the strike even if that employee
personally engaged in no misconduct. The Respondent cites no authority for this proposition,
and I find it to be without merit.
As a corollary argument, the Respondent maintains that its employees who participated
in the strike personally authorized or ratified such strike misconduct because they continued to
participate on the picket line when such unprotected activities occurred and did not take any
action to cause their representatives to discontinue such misconduct; therefore, the employees’
ratification of strike misconduct was itself misconduct. Again, assuming arguendo that the
employees were even aware of such activity,6 the Respondent cites no authority for the
proposition that striking employees who fail to attempt to cause their union representatives to
discontinue any impermissible picket line conduct are thereby complicit in such misconduct. I
also find this contention of the Respondent to be without merit. Further, the Respondent has
conceded that it has taken no disciplinary action against any employee for engaging in strike
activity of any fashion.

6 None of the employees who testified were even asked whether they were aware of such
misconduct by non-employees.
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The Respondent maintains the strikes were unprotected because they were calculated
to cause the most disruption to the Respondent’s operations while providing employees the
most advantageous incentives for striking. Thus, the strikes were called to begin at 2:00 p.m.
(prior to the 3:30 p.m. ending time of the day shift), and the Respondent could not know
whether the day shift employees would be walking out prior to the end of their shift. Moreover,
the strikes were called for weekends in order to enable striking employees to avoid mandatory
weekend work and further because it is most difficult for the Respondent to find weekend
replacements. And lastly, the very nature of discrete and irregular two-day strikes effectively
deprived the Respondent of its right to permanently replace economic strikers.
It is axiomatic that the very purpose of a strike is to cause disruption, both operationally
and economically, to an employer’s business operations in order to cause the employer to
accede to the union’s demands on behalf of the employees it represents. Further, it seems
obvious that the greater the number of employees who participate in the strike, the more
effective the strike is likely to be in accomplishing this purpose. Clearly, the fact that the strike
may have been designed to disrupt the Respondent’s operations and at the same time to
provide an incentive for employees to participate in the strike does not render the strike
unprotected. Moreover, contrary to the Respondent’s assertion that it has been effectively
deprived of its right to permanently replace employees engaged in periodic two-day economic
strikes, there appears to be no legal impediment to permanently replacing such economic
strikers regardless of the length of each strike.
The Respondent argues that the successive 10-day notices announcing a series of
weekend strikes are tantamount to the announcement of recurring “partial” or “intermittent”
strikes, and that the ensuing strikes therefore constituted unprotected activity; accordingly the
discipline for failure to call in was unrelated to any concerted activity protected by the Act.
In Vencare Ancillary Services, 334 NLRB 965 (2001),7 at page 970, the Board stated:
Partial strikes, where employees continue working on their own terms, are not
protected by Section 7 of the Act. See Audubon Health Care Center, 268 NLRB
135, 137 (1983); and Valley City Furniture Co., 110 NLRB 1589, 1594-1595
(1954), enfd. 230 F.2d 947 (6th Cir. 1956). Thus, employees lose their statutory
protection when they perform only part of their job functions while accepting their
pay and avoiding the risks of a total strike. Vic Koenig Chevrolet, 263 NLRB
646, 650 (1982).
In Honolulu Rapid Transit Co., 110 NLRB 1806 (1954), the union advised the employer
in advance that it intended to engage in consecutive two-day weekend strikes until a contract
was agreed upon. It did strike for two days each weekend for four consecutive weekends, and
thereafter never advised the employer that it intended to discontinue this type of weekly strike
activity. The Board determined that this constituted an unprotected intermittent strike, stating at
pages 1809-1810:

7 Enf. denied, 352 F.3d 318 (6th Cir. 2003).
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The decision of the employees in this case, implemented in their part-time
weekend strike, can only be described as an arrogation of the right to determine
their schedules and hours of work…an employer is not required…to alter and
adjust his operating schedules and hours to the changing whim which may suit
the employees’ or a union’s purpose… and thereby in effect establish and
impose upon the employer their own chosen conditions of employment.
In Polytech, Inc., 195 NLRB 695 (1992), employees who were not represented by a
union advised their employer that they were refusing to work scheduled overtime that evening
and quit work at the end of their regular shift. The Trial Examiner determined that this one
instance of refusing to work overtime demonstrated the employees’ future intent to engage in
similar recurrent partial work stoppages, and that such activity was unprotected. The Board
disagreed, stating that a single concerted refusal to work overtime is presumptively protected
strike activity, and that (page 696):
…such presumption should be deemed rebutted when and only when the
evidence demonstrates that the stoppage is part of a plan or pattern of
intermittent action which is inconsistent with a genuine strike or genuine
performance by employees of the work normally expected of them by the
employer.
In Polytech the Board engaged in an analysis of an earlier case, John S. Swift
Company, 124 NLRB 394,396 (1959), enfd. 277 F.2d 641 (C.A. 7), a case in which the
employees’ single refusal to work overtime “to show the company they were serious about
wanting a union contract” (Swift, at p. 395), coupled with their refusal express a willingness to
work overtime in the future, was considered to be unprotected activity. The Board in Polytech,
referencing the Swift decision, stated that in Swift “the employees’ refusal to work the overtime
hours was significant only insofar as it affirmed the employees’ previously announced intention
to embark on an intermittent or recurring strike as a bargaining tactic.”
The Board went on to state, “The holding in Swift, that the concerted refusal to work
overtime was unprotected, reasons that when employees engage in repeated work stoppages
limited to a portion of the working day, they are plainly unwilling to assume the status of
strikers—a status contemplating a risk of replacement and a loss of pay. The principle of these
cases is that employees cannot properly seek to maintain the benefits of remaining in a paid
employee status while refusing, nonetheless, to perform all of the work they were hired to do.”
In Chelsea Homes, Inc., 298 NLRB 813, 831 (1990), a case involving unorganized
employees who engaged in two work stoppages, the Board agreed with the Administrative Law
Judge that “two work stoppages, even of like nature, are insufficient to constitute evidence of a
pattern of recurring, and therefore unprotected, stoppages. “
In Robertson Industries, 216 NLRB 361, 362(1975), another case involving unorganized
employees who also engaged in two work stoppages, the Board states:
While there is no magic number as to how many work stoppages must be
reached before we can say that they are of a recurring nature, certainly the two
work stoppages in the case at bar, which involved a total of 2 day’s absence
from work, do not, in our opinion, evidence the type of pattern of recurring
stoppages which would deprive the employees of their Section 7 rights. [footnote
citation omitted)]
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Reviewing the foregoing cases, relied upon and/or distinguished by both the General
Counsel and Respondent in their respective briefs, it appears that, as the Respondent
maintains, Honolulu Rapid Transit Co. (supra), is most analogous to the instant situation. There
the employees were represented by a union, their intent to engage in recurring weekend strike
activity was announced by the union and then implemented, the strike activity was in
furtherance of their contract demands during ongoing collective bargaining negotiations, and at
no time did the union advise the employer that it intended to discontinue this pattern of conduct.
The same elements relied upon by the Board in Honolulu Rapid Transit Co. appear to
be present in the instant case: the various foregoing 10-day notices herein constitute proof
positive of the Union’s similar intent to engage in a series of recurring intermittent work
stoppages; such work stoppages were implemented; the Union’s intent to continue engaging in
repeated work stoppages as a part of its underlying bargaining strategy until a contract was
reached, absent any contrary evidence, may be clearly presumed; and the strikes were in
furtherance of this strategy. Accordingly, I find that the strike activity in which the employees
participated was unprotected activity. Further I find that in the context of such unprotected
activity the Respondent did not violate Section 8(a)(1) and (3) of the Act either by issuing
warning notices to employees for failure to comply with the two-hour call-in policy,8 or by
requiring employees to make up the weekend shifts they missed while participating in the
strikes. 9
Accordingly, for the foregoing reasons, I shall dismiss the complaint in its entirety.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law, I issue the following recommended:

8 Had the strikes been protected activity, I would have found Respondent’s two-hour call-in
policy to unduly inhibit employees in the exercise of their Section 7 rights in violation of the Act.
Thus, the 10-day notices were sufficient to apprise the Respondent that employees, generally,
would be participating in the strike, and the two-hour call-in rule would inhibit employees from
deciding, as they were coming to work, to join their fellow employees on the picket line.
Moreover, the Respondent could have lawfully polled its employees in advance to determine
who would be participating in the strike. Preterm, Inc., 240 NLRB 654 (1979).
9 Even if the strikes were protected activity, I would find that the Respondent did not violate the
Act by requiring striking employees to make up their missed weekend shifts. The credible
record evidence shows that this policy was not considered disciplinary in nature, and that,
contrary to the General Counsel’s contention, it was customarily applied in an attempt to
equalize the workload among all the employees. While, as pointed out by the General Counsel,
there were past occasions when employees who should have been required to make up their
weekend shifts were not required to do so, I find that this was through mere inadvertence on
the part of one of Respondent’s managers. Thus, there is no reason why this weekend make-
up policy should not also be applied to strikers.
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ORDER10
The complaint is dismissed in its entirety.
Dated: March 1, 2007
________________________
Gerald A. Wacknov
Administrative Law Judge

10 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.