Three Fountains Nursing Center

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 294 (N.L.R.B. 1970)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nursing Centers, Inc. d/b/a Three Fountains Gavigan was employed as a nursing aide on the
Nursing Center and Irene Gavigan. Case 11 p.m. to 7 a.m. night shift. The night shift nursing
30-CA-1129 aide's duties are set forth in a document posted in
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 6, 1970, Trial Examiner Paul E. Weil is-
sued his Decision in the above -entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner with the following
modifications.
1. The Trial Examiner found that Respondent
violated Section 8(a)(1) of the Act by discharging
employee Irene Gavigan because she had engaged
in certain protected concerted activity. While we
do not adopt the Trial Examiner's rationale, we
agree with his conclusion for the following reasons.
Respondent operates a profitmaking nursing
home accommodating about 260 geriatric, mentally
retarded, physically incapacitated, or medicare pa-
tients in four wings or sections. Each wing on each
of the three shifts is supervised by a charge nurse,
who is assisted by one or more nursing assistants or
aides. There is a supervisor for each shift to whom
each shift's four charge nurses are responsible, and
a director of nursing, Mary Richards, who super-
vises the three shift supervisors. The third or night
shift involved herein was supervised by Ruth
Froehlich.
each wing and include, inter alia, cleaning medical
carts, showers, tub rooms, wheelchairs, and
bedpans; making rounds every 2 hours; turning pa-
tients, if necessary; and, "any other assigned duty."
Charge Nurse Marlene Olstinski was assigned
Gavigan and Erma Sheffield, the other dischargee
involved herein, by Froehlich on the night of Oc-
tober 29-30, 1969.2 During the night Olstinski told
Gavigan that, in addition to her other duties, she
was to remove bedside tables from patients' rooms
and clean them before 6 a.m. Since this chore was
seldom or never done by night shift aides, Gavigan
and Sheffield discussed the situation, with the latter
indicating that she would refuse to do it if asked.
Gavigan also telephoned aides Paula Thomas and
Emma Wohlfeil, who were working on another
wing that evening , and they agreed to accompany
Gavigan if she went to Supervisor Froehlich to
learn from her whether they had to clean the bed-
side tables.
Later that evening, when Olstinski reminded
Gavigan about cleaning the bedside tables, the two
women argued. Gavigan said to Olstinski that she
would go to Froehlich and take several of the aides
with her. About 5 a.m. that morning, Gavigan,
Sheffield, Thomas, and Wohlfeil met with Super-
visor Froehlich and were told that since the hour
was late and Gavigan and Sheffield were not nor-
mally assigned to Olstinski, they need not clean the
tables. Froehlich thereafter told Olstinski of her
decision.
After the night shift ended at 7 a.m. October 30,
Olstinski, who clearly construed Gavigan's state-
ment that she would "take several of the aides with
her" to mean that a walkout was threatened, met
with Nursing Director Richards and told her of the
threat. In fact, Gavigan never threatened a walkout,
but was merely telling Olstinski that she was not
alone in complaining to Froehlich.
After receiving Olstinski's erroneous report,
Richards became concerned that the patients would
be left unattended the next night, October 30-31, if
the nursing aides struck in protest over the table
cleaning assignment. In an effort to solve the
problem, Richards telephoned Gavigan sometime
before 2 p.m. on October 30 and asked Gavigan to
come to the home for a conference. While Respon-
dent contends that Richards discharged Gavigan for
' These findings and conclusions are based , in part , upon credibility for disturbing those findings Standard Dry Wall Products , Inc., 91 NLRB
determinations of the Trial Examiner to which the Respondent has 544, enfd 188 F 2d 362 (C A 3)
excepted The Trial Examiner 's credibility findings are not contrary to the : All dates are 1969 unless otherwise indicated
clear preponderance of all relevant evidence . Accordingly, we find no basis
184 NLRB No. 29
THREE FOUNTAINS NURSING CENTER
insubordination because she allegedly refused to
meet with Richards, the Trial Examiner credited
Gavigan's account of that conversation; namely,
that Gavigan told Richards that she was unable to
meet with Richards at that time because no one was
available to watch her children, but she would meet
Richards on the morning of October 31 at the close
of her shift. Richards then told Gavigan that while
she was not against Gavigan's working that night
and conferring thereafter, it would be better if
Gavigan were to take the October 30-31 shift off
and meet with her on the morning of October 31.
Gavigan did not work the October 30-31 shift, in
accordance with Richards' suggestion, and reported
to the nursing home at 7 a.m. for the prearranged
conference with Richards. Not being able to find
Richards at that time, Gavigan returned to Thomas'
house with Wohlfeil and telephoned Richards.
Gavigan's credited account of that conversation fol-
lows:
I told her who I was, and I said , could I come
in and have a conference with her? She said
no, you may not. I said, well you told me
yesterday that if I came in to talk to you I
could start back to work. She says, you tried to
organize a walkout. She said, but your plan
wasn't successful. She said, I wouldn't consider
you in my employ. You're terminated. I don't
want to argue about it, and she hung up....
Later that day Gavigan telephoned Administrator
Huckstep, who is in charge of the nursing home's
entire operations , to discuss her discharge, and he
asked her whether she had been terminated for
threatening a walkout, to which Gavigan replied
that she had not instigated a walkout.
We agree with the Trial Examiner's finding that
Gavigan and the three nursing aides who accom-
panied her were engaged in protected concerted
activity when they protested to Supervisor
Froehlich about the change in their working condi-
tions involved in the additional bedside table clean-
ing duty. While, in fact, Gavigan neither threatened
nor instigated a walkout in protest over this added
chore, Richards believed that she had and
discharged Gavigan therefor. Since the underlying
concerted activity was protected under the Act, we
find that Respondent's subsequent discharge of
Gavigan for supposedly threatening a walkout in
support of such concerted activity violated Section
8(a)(1) of the Act.
2. The Trial Examiner also found that Respon-
dent violated Section 8(a)(1) of the Act by
discharging Sheffield for engaging in protected con-
certed activity. While we do not adopt the Trial Ex-
295
aminer's rationale , we agree with his conclusion for
the following reasons.
As noted above, Richards was genuinely con-
cerned that the patients would have no care in the
event of a walkout on the evening of October 30.
She decided to be at the home that night to answer
the telephone and personally distribute timecards
so that if a strike appeared to be occurring
Richards could arrange for other nursing aides to
cover the night shift. However, in a change from
prior practice at the nursing home, Richards also
decided that any nursing aides who called in sick
that night would have to report for work anyway
and, in essence, prove that they were ill. When
Sheffield called in sick (the Trial Examiner found
that she was, in fact, ill), Richards told her to re-
port for work, but Sheffield refused and was al-
legedly discharged for insubordination. Beatrice
Anthony, who was not involved in the previous
night's concerted activity, also called in sick, and
was likewise told to report. She reported, but was
sent home when she proved to be ill.
The only reasonable explanation for Richards' in-
stituting the theretofore unused policy regarding
employee sickness on October 30 is that she be-
lieved, though erroneously, that the employees
were going to engage in a "sick out" to protest the
prior night 's table cleaning assignment , as Olstinski
had predicted. When Sheffield called in sick Oc-
tober 30, and refused to report as requested,
Richards believed that this was the first incident in
the predicted walkout and discharged Sheffield.
We find , in agreement with the Trial Examiner, that
Richards discharged Sheffield because she errone-
ously believed that Sheffield was engaged in a walk-
out stemming from the prior evening's protected
concerted activity.3 Our finding that Richards was
unlawfully motivated when she discharged Sheffield
is supported by the conclusion above that Gavigan
was discharged on October 31 because Richards
believed that Gavigan had instigated Sheffield's
"sick out" of October 30.
Accordingly, we agree with the Trial Examiner's
finding that Sheffield's discharge violated Section
8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Nursing Centers, Inc. d/b/a
Three Fountains Nursing Center, Milwaukee,
' Cf N L.R B v Burnup and Sims, Inc., 379 U S 21
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisconsin, its officers, agents , successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified.
1. Delete paragraph 1(a) of the Trial Examiner's
Recommended Order and substitute therefor the
following:'
"(a) Discharging or in any other manner dis-
criminating against employees because of their con-
certed activities for the purposes of mutual aid or
protection."
2. Delete the second paragraph of the Appendix
attached to the Trial Examiner's Decision, and sub-
stitute therefor the following:
WE WILL NOT in any like or related manner
interfere with your right to engage in con-
certed activities for the purpose of mutual aid
or protection.
' Respondent has excepted to the use of the terms "labor union" and
"collective bargaining" in the Trial Examiner's Recommended Order and
the "Notice to Employees" attached to the Trial Examiner 's Decision As
the record contains no evidence that a labor organization or collective bar-
gaining was involved herein , we shall delete from the Recommended Order
and the "Notice " those references to a "labor union " and "collective bar-
gaining" apparently inadvertently included by the Trial Examiner
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On November 5,
1969, Mrs. Irene Gavigan filed a charge against
Three Fountains Nursing Center alleging a violation
of Section 8(a)(3) based on her discharge.
Thereafter on December 10 and 15, 1969, Mrs.
Gavigan filed first and second amended charges,
adding a second alleged discriminatee, Mrs. Erma
Sheffield, and naming Respondent as it appears in
the caption hereto. The General Counsel by the Re-
gional Director for Region 30 on December 18
filed the original complaint and notice of hearing
based on Mrs. Gavigan's charges alleging the two
discharges as violations of Section 8(a)(1) of the
Act. By its duly filed answer Respondent admitted
receipt of the charges and the jurisdictional facts
but denied that the alleged discriminatees were
discharged on or about the dates named and denied
that a violation had been committed by it. On the
issues thus drawn a hearing was held before me on
February 3 and 4, 1970, in Milwaukee, Wisconsin.
Respondent was represented by counsel. Mrs.
Gavigan was not represented. All parties had an op-
portunity to adduce relevant and material evidence,
to examine and cross-examine witnesses, to argue
orally on the record, and to file briefs. Oral argu-
ment was waived by the parties; briefs have been
received from the General Counsel and Respon-
dent.
Upon the entire record' in the case including my
observation of the witnesses and in consideration of
the briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Wisconsin corporation, is a wholly
owned subsidiary of General Nursing Homes, Inc.,
a Kentucky corporation , engaged in the business of
operating for profit privately owned nursing homes
in the State of Wisconsin. Respondent annually
receives revenues in excess of $100,000 from the
operation of its business and annually purchases
and receives goods in interstate commerce valued
in excess of $50,000.
Respondent is an employer as defined in Section
2(2) of the Act and is engaged in commerce and in
operations affecting commerce as defined in Sec-
tion 2(6) and (7) of the Act, respectively.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Three Fountains Nursing Center is a nursing
home rendering nursing service to geriatrics pa-
tients, some mentally retarded patients, physically
incapacitated persons, and medicare patients. The
physical plant is shaped somewhat like a comb with
four wings running parallel from a cross wing. Each
of the four wings, denominated a, b, c, and d, has a
nursing station in the center and lounge at the end
furthest removed from the cross wing. Each of the
wings has a capacity of 65 patients.
The nursing care at Respondent's nursing center
is performed on each wing and on each shift by a
charge nurse together with one or more nursing
assistants or aides. Charge nurses are assisted on
occasion by registered nurses or registered practical
nurses in addition to the aides. The four charge
nurses report to a supervisor on each shift and the
three supervisors in their turn report to Director of
Nursing Mary Richards who has one or more
assistants. In addition to the classification of the
employees suggested hove, bedmakers, orderlies,
treatment aides, anu nursing secretaries are em-
ployed on the day shift.
All of the incidents with which we are concerned
occurred and the personnel with whom we are con-
cerned work on the night shift which commences at
11 p.m. and ends at 7 the next morning.
The Charging Party Irene Gavigan was employed
as a nurses aide on the third shift commencing Sep-
tember 30, 1969. She was one of about 14 nursing
assistants utilized on the third shift.
On the evening of October 30 Irene Gavigan and
Erma Sheffield, another nursing assistant, were as-
signed to work on b wing by Ruth Froehlich, the
then nursing supervisor on the third shift. The
charge nurse on b wing that evening was Marlene
'Respondent's unopposed motion to correct the record is hereby
granted
THREE FOUNTAINS NURSING CENTER
Olstinski. Neither Gavigan or Sheffield normally
worked on b wing and apparently neither had
worked for Olstinski prior to that evening.
The duties of nursing assistants on the third shift
were set forth in a document, a copy of which was
located in each wing. They included certain daily
duties of cleaning and restocking equipment and
supplies and certain additional cleaning duties
which were done once a week on specified nights.
In addition the nursing assistants were expected to
make rounds every 2 hours checking on each pa-
tient, turning those patients whose condition
required that they be turned from side to side to
avoid bed sores. The assignment sheet concludes
with the language "plus any other assigned duty."
On the night of October 29, that is to say on the
shift that commenced at 11 p.m. October 29,
Gavigan and Sheffield, before making their second
round at 2 o'clock, stopped to have their lunch as
was their custom. Gavigan had gone to another
wing to eat with some other aides and Sheffield had
apparently stayed on b wing to eat her lunch. When
Gavigan returned but before she met Sheffield she
was told by Mrs. Olstinski that she was to pull the
bedside tables out of the rooms of those patients
who had them, into the corridor and wash them
sometime before 6 in the morning.2 Gavigan told
Sheffield that she had been ordered to do the tables
and Sheffield stated that she would refuse to do
them. Gavigan asked her to tell Olstinski so, but
Sheffield said she would not unless Olstinski said
something to her about it and Olstinski did not.'
About 3:30 on the morning of October 30, Shef-
field and Gavigan had completed their 2 o'clock
rounds and were engaged in the utility room in
washing and drying the bedpans which had been
soaking in a sterilizing solution, after which, they
changed the solution by emptying the old solution
from the barrel and filling it with new solution. At
that time Olstinski came in and got a pan which she
filled with water and cleaning solution after which
she pulled a bedside table out of one of the rooms
and started washing it. Gavigan and Sheffield con-
tinued with what they were doing. Sheffield left
Gavigan sweeping the floor while she went for sup-
plies. On her return she found Gavigan and Olstin-
ski at the nurses' desk arguing about whether
Gavigan had to do the tables. Gavigan at this time
stated that if Mrs. Richards, the superintendent of
nursing, wanted her to join the cleaning crew she
would come in the following morning. Sheffield en-
tered into the discussion to the extent of telling
Mrs. Olstinski that none of the other girls on the
night force cleaned the tables and wondered why
they had to, especially since this was not their regu-
lar wing. Olstinski said that all of the girls did tables
' I base this finding on the testimony of Mrs Sheffield whom I found to
be credible It is substantially corroborated by the testimony of Olstinski
that she gave the order to clean the tables to Gavigan shortly after she came
in at 12 30 Gavigan testified that she was not informed of this duty until
3 30 p in I believe the testimony to be in error.
297
and when Sheffield pointed out that this was not so
Olstinski said they were going to start to do so.
At some time prior to the argument Gavigan had
telephoned two other nurses aides, Thomas and
Wohlfeil, and informed them that she had been in-
structed to wash the tables. They had agreed that if
Olstinski insisted that Gavigan do this work they
would go in a body to Supervisor Froehlich in an
attempt to override Olstinski's orders.
When the argument concluded Gavigan told 01-
stinski that she was going to see Froehlich and
Sheffield said that she would go along. As they
passed the wing in which Thomas and Wohlfeil
were working they were joined by those women and
the four made their way to Froehlich. Froehlich
listened to their story and told Gavigan that she
would not have to wash the tables and that she
(Froehlich) would talk to Olstinski about it.
About 5 in the morning Froehlich came to the
wing and told Olstinski that she should not require
Gavigan and Sheffield to wash the tables inasmuch
as they were not regularly employed on that wing
and she should not ask them to do that work.
Olstinski testified that a few nights previously the
regular aides on her wing had washed all but about
15 of the tables and that she had instructed
Gavigan and Sheffield only to wash the remaining
tables. It appears that this is the only occasion when
aides on the third shift had been required to wash
bedside tables prior to this time. In the discussion
between Olstinski and Gavigan, Gavigan had stated
to Olstinski that if Olstinski required her to do the
tables she would go to Froehlich and take several of
the aides with her. Olstinski apparently construed
her statement to mean that she would walk out of
the hospital and take other aides with her.
The following morning Olstinski waited until
Mrs. Richards came in and reported to her that
Gavigan had insubordinately refused to wash the ta-
bles as she had told her to do and that she had
threatened to walk out and take five aides with her.
Somewhat later between 9:30 and 10 a.m., ac-
cording to Richards, and about 1:30 p.m., accord-
ing to Gavigan, Richards telephoned Gavigan and
told her that she wanted her to come in for a con-
ference. According to Gavigan she said that she
could not come in without making arrangements
because of her children,4 and asked whether she
could talk to Richards the following morning since
she was scheduled to work the night of the
30th-31st and Richards usually came to work at the
time of the shift change at 7 in the morning.
Richards said that she would not permit her to
work one more night without having a conference
and told her to take the night off and they would
talk about it the next day. Richards also asked if
' I discredit Olstinski's statement that she told both Gavigan and Shef-
field to do the tables.
'Mrs Gavigan has nine children ranging in age from 2 years to
adulthood
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gavigan had threatened to walk out and take four
others with her. Gavigan answered that she had said
that she was going to see Mrs. Froehlich and there
were four others going with hers
According to the testimony of Richards she
called Gavigan and asked her to come and see her
regarding the incident and Gavigan arrogantly
refused to come in. Richards told her she had no
choice, that she would not work until she did,
whereupon Gavigan again said she was not going to
come in because she had to work that night.
Richards then said she would give her the night off
and she could come in the following morning to
talk to her. Gavigan again "arrogantly" refused to
come in and said "if you fire me how would you
like it if no one comes to work tonight." Richards
then told her she was still terminated and hung up.
At 2 that afternoon Mrs. Richards conducted a
supervisors' conference, the first of what were to
become regular monthly conferences. After the
conference she talked to the night supervisors at
which time Froehlich told Richards that she had
told Gavigan and the other aides that they did not
have to scrub the tables. Richards told of her con-
versation with Gavigan on the telephone and stated
that Gavigan had refused to come in. Froehlich said
it was probably because of her children at home to
which Richards answered, according to Froehlich,
that it did not sound like that to her, that Gavigan
said that if she could not work that night no one
else would. Froehlich stated that she thought that
was unlikely. Nevertheless Richards indicated her
concern whether there would be enough help to
cover the wings and said that everyone would have
to come in that night or she was going to terminate
them.
Richards came into the nursing home between 9
and 9:30 that evening and went to her office. She
caused the timecards for all the nursing assistants to
be taken out of the racks and brought to her, Each
of the nursing aides had to come to her to get their
timecards. She also answered the telephone. Erma
Sheffield credibly testified that she was ill that
evening and called in to tell the evening supervisor.
Mrs. Richards answered the telephone and
identified herself. Sheffield stated that she was not
feeling well and would not be in to which Richards
said that she did not believe her, she had been
forewarned and if Sheffield did not come in she
would be terminated. Sheffield said "all right" and
hung up.
According to the testimony of Richards, Sheffield
reported that she was sick and Richards said that
Olstinski had reported the incident of the night be-
fore and she wanted to discuss it with her. Sheffield
said she was not coming in whereupon Richards
said that she would have to come in and discuss the
matter with her or she would be terminated to
which Sheffield answered "all right I'm terminated"
and hung up. I credit Sheffield's testimony first
because I have found her generally credible and
second because I find Richards' testimony incredi-
ble in many respects . Based both on her demeanor
and the inconsistency of her testimony I find it dif-
ficult to credit Mrs. Richards except to the extent
that her testimony is corroborated by otherwise
credible testimony. For example, at one place in
her testimony Richards testified that she did not
hear from Froehlich for a week after the incident
because Froehlich was not at work for the
forthcoming week. However, later she recalled a
meeting with the night supervisors after the general
meeting. At this point she was unable to remember
anything that ,was discussed with the night super-
visors although she obviously did remember that
Mrs. Froehlich was present. That she was aware
that the central issue in the case concerned whether
the discharge of Gavigan had anything to do with
her threat to lead a walkout was obvious from her
testimony in which she attempted to downgrade
any mention of her concern that there would be a
work stoppage. Her testimony with regard to the
conversation with Gavigan is incredible in that she
insisted that she left the option with Gavigan
whether or not to work the night of the 30th and
see her the following morning but Gavigan refused
to do so, although all of the circumstances indicate
that this is precisely what Gavigan offered to do
and what would have been most convenient for her.
It is incredible that Gavigan refused to come in to
discuss the matter with her in the light of the at-
tempts made by Gavigan thereafter and by her
husband to discuss the matter either with Richards
or with Richards' superior, Administrator
Huckstep. With regard to the conversation with
Mrs. Sheffield over the telephone, the version at-
tributed to her above was given in Richards' direct
testimony. On cross-examination she testified that
she did not say that Sheffield had to come in that
moment and that they did not discuss when she
should come in because Sheffield flatly refused to
come in and discuss the situation at all whereupon
she considered that "technically" she quit. She de-
nied that she had any concern that there would be a
walkout that night and testified that she had the
timecards removed so that she could see the aides
when they came in and talk to them. However, of
the aides who came in that night and later testified
it is apparent that she talked to none of them. One
other aide, Beatrice Anthony, called in sick that
night and- she told her the same as she told Shef-
field, to come in even if she was sick. Thereafter
she came in and was obviously sick and was sent
home . Richards ' testimony on cross-examination
with regard to the removal of the timecards was
evasive but it was clear , taking it as a whole, that
Mrs Gavigan at no time seemed to notice the disparity in her testimony
about four others going with her to see Froehlich and the fact that only
three aides did go with her
THREE FOUNTAINS NURSING CENTER
her purpose was to learn as early as possible
whether in fact a walkout would occur. With regard
to requiring employees to come in, even when they
were sick, and prove that they were sick, she
testified that it was not necessarily a standing order
and depended on the circumstance that an em-
ployee had an unusually large absentee record.
However, both in the case of Beatrice Anthony and
Mrs. Sheffield, the two whom Richards required to
come in under pain of termination , she admitted
that they did not have serious absentee records.
A. Conclusions
I conclude that Mrs. Gavigan was terminated at
least in part because Respondent , in the person of
Mrs. Richards, concluded that she had threatened a
walkout over the issue of whether the night nursing
assistants would be required to wash the tables.
This conclusion is supported by testimony of
Huckstep that his understanding of the report made
to him by Richards with regard to the discharge of
Gavigan was that she was "fired because of her in-
subordination and for trying to incite the other em-
ployees to walk off the job." His testimony that on
further investigation and information he ascer-
tained that Richards fired Mrs. Gavigan solely for
insubordination is of course of no substantive value.
This simply represents his conclusion after the is-
sues had been drawn by the filing of the charge and
the investigation of the case that the discharge was
solely for insubordination. Of course his earlier
conclusion is of no evidentiary value except to the
extent that it reveals the information furnished him
by Mrs. Richards. He was asked the question:
. inasmuch as you were involved and did
discuss this matter with Mrs. Richards you
know and did know at that time the reasons for
her discharge; isn't that correct?
A. The reasons that were given to me at that
time.
Q. And those reasons were, the reasons for
her termination were, according to you, refusal
to do those tables and for inciting the other
employees to walk off the job; isn't that cor-
rect?
A. At that time I answered it that way but I
presently believe its insubordination.
Having found that the discharge of Gavigan was
at least in part because Respondent suspected or
believed that she was going to lead a walkout or
had threatened to do so, the legal issue remains
whether that constitutes a violation of the Act.
Respondent argues that such activity on the part of
Gavigan was neither protected nor concerted; that
it was unprotected because she was in effect at-
tempting to establish her own working conditions
and not concerted because we are dealing, after all,
only with her own statement that others would fol-
low her rather than with a factual basis of activity
299
on the part of more than one employee. The latter
argument is of interest. In fact if the belief on the
part of Mrs. Richards was that Gavigan had
threatened a walkout in her telephone conversation
the theory would seem to have support. But no sup-
port exists if Richards' belief stemmed from the
story told her by Olstinski that Gavigan had in fact
walked out of the ward taking three other girls with
her to talk to Froehlich and had threatened that if
Froehlich left the employ of the Company, the
other girls on the third shift would leave the employ
of Respondent, which fact is indeed corroborated
by the testimony of Sheffield, Thomas and Wohl-
feil. Furthermore, the threat was accompanied with
such a display of concerted action by the nursing
assistants on the third shift that it cannot be held to
be anything but concerted action. I have found that
there was indeed no threat by Gavigan of a walk-
out. The only person who so testified was
Richards and I discredit her and credit Gavigan's
denial. I find that the only intimation of a walkout
that came to Richards' attention was in the report
of Olstinski in which the story would have to have
been inextricably entwined with the story of the
concerted activity already taken by the nursing
assistants . Under the circumstances I conclude that
the belief of Richards was that concerted activity
was threatened and assuming that such concerted
activity was protected it would be violative for her
to react by discharging the employees concerned.
The Board has held that concerted activity which
in effect is an attempt on the part of employees to
unilaterally establish their working conditions falls
without the protection of the Acts
Respondent herein contends that the actions of
the employees and particularly of Gavigan falls
within this "unprotected" category. The Honolulu
Rapid Transit case and others like it are cases in
which employees engaged in partial work stoppages
such as refusing to work weekends, refusing to
work overtime or limiting their production to cer-
tain hours or certain standards. These efforts on the
part of employees are deemed partial strikes and in
most cases fall without the protection of the Act,
under the rationale that employees may either
strike or not but may not vitiate the employer's
right to establish working hours, subject of course
to a collective-bargaining agreement, by a device
which permits them both to hold their jobs and to
refuse to work at them. As the Board stated in
Honolulu Rapid Transit Company, supra, the vice of
such conduct was that employees were attempting
to "establish and impose upon the employer their
own chosen conditions of employment."
In the instant case there was no partial strike or
other concerted withholding of services in an at-
tempt to change the Employer's clearly established
working rules. Here, rather, an intermediate super-
visor ordered the employees to do certain addi-
tional work not theretofore required of employees
' Honolulu Rapid Transit Company, Limited, 110 NLRB 1806
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in their circumstances to their knowledge . The con-
certed activity undertaken by the employees was to
go over the head of the intermediate supervisor to
their regular supervisor to ascertain whether they
were required to do the additional cleaning . The reg-
ular supervisor responded by telling them they need
not do the work . In the course of the discussions
Gavigan made statements which , by the time they
were relayed to Richards , appeared to be a threat
of walkout by the effected employees . The basic
dispute here was really a protest against the addi-
tion of a new chore to the employees ' regular duties
and not an attempt by the employees to establish
their own working conditions . The concerted activi-
ty of the four women in going to the night super-
visor to protest lasted only some 15 minutes. If we
deem them strikers at all they walked out in an at-
tempt to protest a changed condition of their em-
ployment . The act they chose was not "un-
reasonable " in the sense that the term is used in the
Board decision in Plastilite Corporation 7. It does not
appear that with the exception of one patient,
whom Nurse Olstinski took care of, any patient
care suffered as a result of their activities and cer-
tainly their means of protest was "reasonably re-
lated to the end sought to be achieved ."8 The short
answer is that the work stoppage was related to a
condition of employment and under the circum-
stances that the activity of the employees was con-
certed, became a "labor dispute " within the mean-
ing of the Act.' To the extent that the discharge of
Gavigan stems from her engaging with three other
women in a work stoppage to call on Supervisor
Froehlich , I find it violative of Section 8(a)(1).
Even if the discharge resulted from a fear by
Nursing Director Richards that the employees were
about to engage in a work stoppage the following
night, either because of the information furnished
her by Nurse Olstinski or because of her own latent
fears of concerted activity , of which there is some
evidence on the record , the Employer is in no
better position , for as I see it the protection of the
Act depends upon the nature of the basic dispute
and the basic dispute remains the same . 10 Nor is it
of any avail to Respondent that I find that the
threat of a walkout was not in fact made. The case
would be the same , as I view it , whether or not
Gavigan threatened to lead a walkout . If the Em-
ployer were incorrectly advised as it would appear
to have been herein , under the rationale of the
decision of the Supreme Court in Burnup and
Simms, the discharge is still violative."
B. The Discharge of Sheffield
As I related above Sheffield was discharged the
night following the dispute over washing the tables
T 153 NLRB 180
' N L R B v Dobbs Houses , Inc, 325 F 2d 531 (C A 5)
' The reasonableness of the workers ' decision to engage in concerted ac-
tivity is irrelevant to the determination of whether a labor dispute exists or
not Washington Aluminum Company v N.L R B . 370 U S 9, 16
10 I do not mean by this finding to reject as one of the reasons for the
when she called in and reported that she was ill.
Richards' attempt to characterize the discharge as a
quit is ill advised. Richards admittedly told her that
she would either have to come in or be terminated
and Mrs. Sheffield acquiesced that she was ter-.
minated. There is no controversion of her
testimony that she was indeed ill on the occasion.
It is clear that Respondent at no time in the past
had required employees other than those with poor
attendance records to come in to work when they
were ill. I find that Respondent was not acting on
this occasion in accordance with its normal custom
but rather was reacting to Mrs. Richards' belief that
a work stoppage might ensue . The inference is
unmistakable that her decision to discharge any
employee who did not come to work that night and
her action in informing employees of this fact was
solely an effort on the part of Respondent to nip in
the bud any concerted activity on the part of the
employees to protest either the addition of the table
washing chore or the discharge of Gavigan. This the
employer may not do. There can be no clearer in-
terference with the right of employees to engage in
activity for their mutual aid and protection than the
discharge of an employee who appeared to be tak-
ing such concerted action. Even if I had found the
action of Gavigan to be unprotected and her
discharge not violative, nevertheless, I would have
to find the discharge of Sheffield to be a violation
inasmuch as it is a protected concerted activity for
employees to engage in a concerted work stoppage
to protest the discharge of a fellow employee
whether or not the cause therefor is good. Ac-
cordingly I find that by the discharge of Erma Shef-
field Respondent violated Section 8(a)(1) of the
Act.
C. Respondent's Defense
In its defense Respondent attempted to adduce
evidence that the night force at the nursing home
was in a turmoil because of the presence of at least
two cliques of employees, one consisting of some
three girls and Nurse Olstinski, opposed to another
consisting of most if not all of the remaining
nursing assistants and Froehlich. In addition,
Respondent attempted to introduce evidence that
Froehlich was an incompetent supervisor, that she
condoned poor work on the part of the members of
the clique who gave her fealty, that she was in the
habit of coming to work under the influence of al-
cohol and that she failed to backup the charge
nurses under her supervision, especially Olstinski.
Respondent further introduced some evidence and
sought to introduce other that this resulted in the
night nursing assistants' failing to do their assigned
work, spending untold amounts of time sitting in
discharge the insuborrdtnatlon implicit in Gavigan's argument with Olstln-
ski as reported by Mrs Sheffield What I find is that quite aside from this
cause of discharge, Respondent , in the person of Richards, also acted on
the other which I find to be violative of the Act
1 t Ridge Tool Company, 102 NLRB 512
THREE FOUNTAINS
the lounges engaging in personal pursuits rather
than doing their work taking care of patients , sleep-
ing on duty and other inappropriate activities.
Respondent contends that as a result of the turmoil
that resulted from these conditions the activity of
Gavigan and her three supporters in protesting 01-
stinski 's orders and refusing to carry them out lost
its protection . I have indicated I rejected much of
the proffered evidence in support of this theory. I
do not consider that concerted activity loses its pro-
tection because in other respects the employees
concerned may have been delinquent in their du-
ties . It is clear from the record that there were ex-
traordinary tensions among the employees on the
night force . Whether Gavigan 's cause was just or
wise or temperate appears to me irrelevant to the
issue before me, just as I find it irrelevant to decide
whether Olstinski's order to pull the tables out of
the rooms of sleeping patients in the small hours of
the morning and wash them in the corridors was
wise , just or temperate . The real issue as I see it is
whether the objectives of the actions taken by the
four nursing assistants was concerned with their
mutual aid or protection and concerned their work-
ing conditions . This I have found to be the fact. Ac-
cordingly I must reject Respondent 's defense.
CONCLUSION OF LAW
By discharging employees Gavigan and Sheffield
for engaging in concerted activity or because
Respondent believed they were engaging in con-
certed activity Respondent engaged in unfair labor
practices affecting commerce within the meaning of
Section 8 (a)(1) and Section 2(6) and (7) of the
Act.
THE REMEDY
I recommend that Respondent cease and desist
from its unfair labor practices, that it offer to rein-
state employees Gavigan and Sheffield with
backpay computed in accordance with the decision
of the Board in F. W. Woolworth Company, 90
NLRB 289, with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138
NLRB 716, and that it post the notices provided for
herein.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II, above, occurring in connection with Respon-
dent's operations described in section I, above,
have a close, intimate, and substantial relationship
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's 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-
NURSING CENTER 301
to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and
upon the entire record I recommend that Respon-
dent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or in any other manner dis-
criminating against employees because of their con-
certed activities for the purposes of collective bar-
gaining or other mutual aid or protection.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed under Section 7 of
the Act.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) Offer to reinstate Irene Gavigan and Erma
Sheffield to their former or substantially equivalent
positions without prejudice to their seniority or
other rights and privileges and make them whole in
the manner set forth in the section of this Decision
entitled "The Remedy" for any loss of earnings suf-
fered as a result of their discharges on October 30
and 31, respectively.
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at the Three Fountains Nursing Center
copies of the attached notice marked "Appen-
dix. "12 Copies of said notice, on forms provided by
the Regional Director for Region 30 (Milwaukee,
Wisconsin), after being duly signed by its
authorized representative, shall be posted by.
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 30,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith. t3
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX NURSING CENTERS, INC.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge you because you en-
gage in concerted activities for your mutual aid
or protection.
WE WILL NOT in any like or related manner
interfere with your right to join or be
represented by a labor union or engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection.
Since the Board found we violated the law
when we discharged Irene Gavigan and Erma
Sheffield we will offer them their old jobs back
and give them backpay.
D/B/A THREE FOUNTAINS
NURSING CENTER
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 2nd Floor Commerce Building, 744
North 4th Street, Milwaukee, Wisconsin 53203,
Telephone (414) 272-8600, Extension 3861.