Vencare Ancillary Services

National Labor Relations Board - Board Decisions

Aug 6, 2001

334 N.L.R.B. 965 (N.L.R.B. 2001)

VENCARE ANCILLARY SERVICES 965
Vencare Ancillary Services, Inc. and Martha J. Sev-
ers. Case 25–CA–26096–2
August 6, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On May 28, 1999, Administrative Law Judge Jerry M.
Hermele issued the attached decision. The General
Counsel and the Respondent each filed exceptions, a
supporting brief, and an answering brief, and the Re-
spondent filed a reply brief. Additionally, the General
Counsel filed a motion to expedite and the Respondent
filed a response.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions
only to the extent consistent with this Decision and Or-
der.
For the reasons set forth below, we reverse the judge’s
dismissal of the complaint allegations and find that the
Respondent violated Section 8(a)(1) of the Act by dis-
charging employees Martha Severs, Norman deCaussin,
Evonne Higdon, Barbara Thomas, and Lisa Winkler
because they engaged in a protected concerted work
stoppage on June 23, 1998.2
I. FACTUAL BACKGROUND
The facts as set out by the judge, and supplemented by
the uncontradicted testimony, are as follows. The Re-
spondent is a Kentucky corporation engaged in the busi-
ness of providing short-term and long-term rehabilita-
tion services, i.e., physical, occupational, and speech
therapy. It provides these services on a contract basis to
facilities owned by its parent company, Vencor, Inc., a
nationwide healthcare provider. One of those facilities
is the Hermitage Nursing & Rehabilitation Center, a 90-
bed, skilled nursing facility located in Owensboro, Ken-
tucky, the facility involved in this proceeding.
In May 1998, the Respondent’s rehabilitation staff at
Hermitage comprised physical therapist Norman de-
Caussin, physical therapist assistants Evonne Hidgon,
Barbara Thomas, and Lisa Winkler, occupational thera-
pists Traci O’Rourke and Nil Kanth-Bohre, speech-
language pathologists Martha Severs and Melissa
O’Keefe, and rehabilitation technician Marsha Bell.
Bryan Stuart, a former physical therapist, supervised the
Respondent’s rehabilitation department at Hermitage
and reported directly to Kevin Mack, the Respon-
dent’s regional operations manager for Kentucky and
Tennessee.3 In turn, Mack reported to Mary Lynn
Lee, the Respondent’s regional director, who reported
to Frank Anastasio, the Respondent’s vice president.

1 The General Counsel’s motion is denied as moot.
2 All dates are in 1998, unless stated otherwise.
On May 29, at the therapists’ regularly scheduled
morning meeting, Stuart announced that the Respon-
dent would be implementing wage cuts, effective July
1. He stated that all of the therapists, except for one,
would receive a wage cut, and that some of those cuts
would be substantial. He explained that although he
did not personally agree with the Respondent’s deci-
sion, there was nothing he could do. He then in-
formed the therapists that he would be meeting with
each of them individually later that day to discuss how
their salaries would be affected, and that they could
then ask questions or make comments about the wage
cuts. The Respondent also distributed a memo that
day regarding the wage cuts.
Stuart met with each of the employees later that day
as promised. He met first with Severs. According to
Severs, Stuart advised her that her rate of pay, as of
July 1, would be reduced from $23 to $18.03 per hour.
He said that he thought her proposed wage cut was
drastic and that he had asked the Respondent to recon-
sider its decision to cut her salary several times, with-
out success. He explained that the Respondent had
asked him to solicit employees’ comments about the
wage cuts. Severs inquired how the Respondent had
arrived at her new rate of pay. Stuart informed her
that a nationwide survey had been conducted and that,
as a result, a new wage scale had been established.
When Severs asked if she could see the survey, Stuart
replied that he had been instructed by the Respondent
not to give that information out to employees.
Stuart met next with Thomas. According to Tho-
mas, Stuart told her that the decision to reduce her
salary had nothing to do with her work performance.
He told her that he disagreed with the Respondent’s
proposed wage cuts, some of which he believed were
drastic. He then handed her a piece of paper and told
her that her rate of pay, as of July 1, would be reduced
from $16.35 per hour to $14.18 per hour. Thomas
said that she disagreed with the wage cut.
Stuart then met with Higdon, and informed her that
her rate of pay would be reduced from $15.75 to
$14.18 per hour as of July 1. According to Hidgon,
when Stuart asked for her comments regarding the
wage cut, she asked to see the Respondent’s new
3 With the exception of the rehabilitation department staff, all
employees, including the administrator and the director of nursing,
were employed by Vencor.
334 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966
wage scale. Stuart declined to show it to her, however,
claiming that if he did, she would then know what other
employees earned.
Stuart’s final meeting that day was with deCaussin.
He informed deCaussin that because of his many years
of experience, his rate of pay would not be affected by
the Respondent’s proposed wage cuts. Nonetheless,
deCaussin told Stuart that he did not agree with the Re-
spondent’s decision to cut his coworkers’ wages.4
Following the Respondent’s May 29 announcement,
the employees discussed among themselves their various
concerns about the impending wage cuts. On June 10,
Severs asked Stuart whether he had heard back from the
Respondent about the concerns Severs had raised on
May 29. Stuart replied that he had no additional infor-
mation. Later that same day, she spoke with Stuart
again, and asked for a second time if she could see the
Respondent’s new wage scale. Stuart showed her a
wage scale with a few figures on it. He explained that
the wage scale had a low, medium, and high point, and
that where one fell on the scale would determine one’s
new salary. He said that under the new wage scale, she
would have to work for the Respondent for an additional
8 years to equal her present rate of pay.
Having received no response from the Respondent’s
upper management regarding the concerns they had
shared with Stuart earlier, the employees decided to
meet to discuss what, if anything, they could do about
the wage cuts. On Friday, June 19, at approximately
4:30 p.m., Severs, deCaussin, Thomas, Higdon, and
Kanth-Bohre met at the Moreland Park baseball field.
They decided to draft a memo to the Respondent’s upper
management expressing their dissatisfaction with the
Respondent’s decision to cut their wages. They agreed
they would present that memo to Stuart at the therapists’
morning meeting on Monday, June 22. They also
agreed that deCaussin should present the memo, because
they believed that as the only employee unaffected by
the wage reduction, he might lend additional credibility
to their protest. In addition, they decided that they
would refuse to see any patients until the Respondent’s
upper management responded to their memo.
The memo, which was drafted with input from every-
one who attended the meeting, stated, among other
things, that the employees strongly objected to the Re-
spondent’s implementation of the wage adjustments and
requested that alternative “fiscal solutions” to the pro-
posed wage adjustments be considered by the Respon-
dent. The memo was directed to the attention of Anas-

4 The record does not reflect what occurred during the other employ-
ees’ meetings with Stuart.
tasio, the Respondent’s vice president, and Gregory F.
Bellomy, the Respondent’s national director. Severs
agreed to type the memo over the weekend, and on
Monday, June 22, Severs circulated it among her co-
workers for their signatures. Although Severs, de-
Caussin, Hidgon, Thomas, and Winkler signed the
memo that day, they decided against presenting it to
Stuart at that day’s morning meeting as originally
planned because their coworker O’Rourke was away
from work that day.
On Tuesday, June 23, prior to the start of the thera-
pists’ morning meeting, O’Rourke agreed to sign the
memo; however, Bell refused when asked.5 Stuart,
Severs, deCaussin, Higdon, Thomas, Winkler,
O’Keefe, Kanth-Bohre, and O’Rourke all attended
that day’s morning meeting. As Stuart started the
meeting, deCaussin handed him the memo and asked
him to read it. Stuart took the memo, placed it under-
neath some other papers he had, and stated that he
would read it later because they had other issues to
address that day. DeCaussin told him that the memo
contained the issues of the day, whereupon Stuart read
it and informed them that he agreed with a majority of
it. DeCaussin told him that they felt that the Respon-
dent had failed to respond to their concerns about the
wage cuts, and that they wanted the Respondent to
take them seriously. Severs then stated that they were
not unionized, that they had no representative to voice
their concerns for them, and that they felt very
strongly about the issues. Thomas told him how un-
fair the Respondent’s wage cut was in her case given
that she had just been hired 3 months earlier at an
agreed-upon rate, which had included the potential for
a 50-cent increase after a 90-day review, but now the
Respondent was planning on cutting her salary by
more than $2.
Severs and deCaussin then informed Stuart that the
employees were not going to see patients that day
until the Respondent’s upper management responded
to their memo, and that they would remain at the facil-
ity and wait for a response. Stuart indicated that he
did not think that the Respondent would respond in a
positive manner to their refusal to see patients, and he
urged them to reconsider their decision. He indicated
that he viewed their grievance regarding the wage cuts
and their refusal to see patients as two separate issues.
He told them that he would transmit the letter to Mack
via facsimile.
5 O’Rourke told her fellow employees immediately after the
morning meeting that she was not participating in their refusal to see
patients. She also informed Stuart that she was not refusing to see
patients despite the fact that she had signed the memo.
VENCARE ANCILLARY SERVICES 967
After the meeting, deCaussin returned to his desk and
sat there doing nothing. After about an hour, he was
called to go see Stuart. Stuart informed him that he had
been instructed by Mack to meet individually with the
employees who had signed the memo to confirm that
they were not going to see patients. He explained to
deCaussin that the refusal to see patients could lead to
termination. DeCaussin said he understood, but that he
had agreed not to see patients until the Respondent’s
upper management responded to their memo. He left
and returned to his desk to wait for a response. Accord-
ing to deCaussin, he performed no more work.6 At
noon, he went to Stuart and told him that he was leav-
ing, and that he would probably not return because he
was not feeling well, but that he should be contacted if
needed. He left work that day without recording his
work hours on his daily activity report (DAR). Accord-
ing to deCaussin, he did not fill out his DAR because he
did not expect to be paid for work that day.
Hidgon returned to her office after the morning meet-
ing and worked on some patient progress notes gener-
ated from prior patient appointments.7 At about 9:30
a.m., she met with Stuart, who inquired if she intended
to see patients that day. She informed him that she did
not. She also informed him that none of them had any
intention of accepting pay that day. Higdon returned to
her office, where she remained until she went out to
lunch with Severs, Winkler, and Thomas.
Thomas likewise returned to her office after the morn-
ing meeting, where she did some filing and some patient
care documentation. When she met with Stuart at 10
a.m., she informed him that she was not going to see
patients until the Respondent’s upper management ad-
dressed the memo. According to Thomas, Stuart replied
that he knew what Mack’s response would be, but he did
not elaborate. Before going to lunch, Thomas went back
to Stuart and told him that if the issues were not ad-
dressed she would quit because, based on his earlier
comment, she believed that Mack was going to fire them
for refusing to see patients.
Severs also returned to her office after the morning
meeting and worked on some paperwork, including pa-
tient progress notes generated from prior patient ap-

6 Bell recalled deCaussin doing paperwork prior to the therapists’
morning meeting on June 23, but also on June 24. However, as dis-
cussed below, Thomas informed deCaussin on the afternoon of June 23
that they were not to report back to work until contacted by the Re-
spondent’s legal department. DeCaussin specifically denied being at
work on June 24.
7 Progress notes, which are made in patient charts and/or files, record
patient care information, such as whether the patient has moved from a
walker to a cane or whether the patient is now walking 100 feet as
opposed to 50 feet.
pointments. She also sorted through papers and
cleaned out her filing cabinet. Stuart called her into
his office before lunch. Severs confirmed that she
would not see patients that day until the Respondent’s
upper management responded to the memo. Severs
informed him that although she was refusing to see
patients, any patient who required her services that
day, i.e., speech therapy, could be seen by her fellow
speech pathologist who, unlike her, was not refusing
to see patients. She also informed him that patients
who required occupational therapy that day could still
be seen because the two occupational therapists were
likewise not refusing to see patients. She advised him
that any physical therapy patient not seen that day
could also be seen later that week, including Saturday,
because physical therapists not only had discretion
when scheduling their appointments with patients, but
they also had to cover weekends at the facility. Like
the others, she told him that she did not expect to be
paid for work that day. She did not complete her
DAR for that day.8
After lunch, Severs, Thomas, and Hidgon returned
to their offices. Winkler did not return after lunch. At
Mack’s instruction, Stuart informed each of them to
leave the facility and not return until they were con-
tacted by the Respondent. Thomas called deCaussin
and informed him what Stuart had told them. There-
after, he met Severs, Hidgon and Thomas at Moreland
Park, where they agreed to wait to hear from the Re-
spondent as instructed. The next morning, however,
Severs, deCaussin and Hidgon met and wrote a memo
to Anastasio and Bellomy, and another memo to
Bruce Lunsford, Vencor’s CEO, regarding what had
transpired on June 23. In the memos, they requested,
once again, that the Respondent’s upper management
consider alternative fiscal solutions to the wage cuts.

Later that same day, Stuart contacted deCaussin,
Severs, Winkler, Thomas, and Hidgon by telephone to
advise each of them to come to the facility individu-
ally on June 25 at assigned times. Later, it was agreed
that the five employees would meet with Stuart and
Mack as a group at 9 a.m. When they met on the
morning of June 25, Stuart handed them each dis-
charge notices. The discharge notices state that the
five employees were discharged for: “violation of
company policy, failure to perform job assignment,
insubordination, violation of code of ethics, and stan-
dards of practice.”
8 The record establishes that shortly before the hearing, almost 8
months after the Respondent had discharged the five employees, it
sent them paychecks for June 23.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 968
II. THE JUDGE’S DECISION
The judge concluded that the five employees’ refusal
to see any patients until the Respondent’s upper man-
agement agreed to meet with them to discuss the wage
cuts was a short-term, single work stoppage protected by
Section 7 of the Act. The judge rejected the Respon-
dent’s contention that the five employees were engaged
in an unprotected partial strike because they continued
working after announcing their intent not to see any pa-
tients. The judge found that the paperwork completed
after the group’s announcement was nothing more than
incidental wind-up work done in preparation for the
work stoppage, that they did not expect to be compen-
sated for this work, and that they left the Respondent’s
premises immediately when directed to do so by Stuart.
However, notwithstanding his conclusion that the em-
ployees’ work stoppage was protected concerted activity
under Section 7 of the Act, the judge dismissed the
complaint in its entirety. He did so based on the Re-
spondent’s argument, raised for the first time in its
posthearing brief, that the employees had failed to pro-
vide Respondent with 10-day written notice of an intent
to strike pursuant to Section 8(g) of the Act, which re-
quires a labor organization to give at least 10 days writ-
ten notice before engaging in a strike or concerted re-
fusal to work at a health care institution.9 The judge
found that Hermitage was a health care facility as de-
fined by Section 2(14) of the Act. Relying on Betances
Health Unit, 283 NLRB 369 (1987), he also found that
because these five employees held several meetings,
decided on a course of action, selected a leader, and em-
barked upon the work stoppage, they constituted a labor
organization as defined by Section 2(5) of the Act. He
therefore concluded that Section 8(g) applied, that the
employees were required to give the Respondent 10-day
written notice prior to engaging in the work stoppage,
and that because they failed to do so, they forfeited their
status as employees under the Act pursuant to Section
8(d) of the Act,10 and the Respondent properly termi-
nated them.

9 In relevant part, Sec. 8(g) provides that: “A labor organization be-
fore engaging in any strike, picketing, or other concerted refusal to
work at any health care institution shall, not less than ten days prior to
such action, notify the institution in writing and the Federal Mediation
and Conciliation Service of that intention.” 29 U.S.C. § 158(g).
10 In relevant part, Sec. 8(d) provides that: “Any employee who en-
gages in a strike within any notice period specified in this subsection,
or who engages in any strike within the appropriate period specified in
subsection (g) of this section, shall lose his status as an employee of the
employer engaged in the particular labor dispute, for the purposes of
sections 8, 9, and 10 of this Act . . . .” 29 U.S.C. § 158(d).
III. CONTENTIONS OF THE PARTIES
The General Counsel contends that the judge erred
in finding that the five employees constituted a labor
organization under Section 2(5) of the Act and were
therefore required to give 10-day notice under Section
8(g) prior to engaging in the work stoppage. The
General Counsel contends that the employees did not
constitute a labor organization because they did not
meet the “dealing with” requirement of Section 2(5).
The General Counsel further contends that the Board’s
decision in Betances, supra, fails to support the
judge’s finding that the employees comprised a labor
organization.
The Respondent agrees with the judge’s dismissal
of the complaint, but asserts that even if the employ-
ees did not constitute a statutory labor organization,
their refusal to see patients on June 23 was unpro-
tected because of the “unduly and disproportionately
disruptive [and] intemperate means” employed. Addi-
tionally, the Respondent contends that the judge erred
in concluding that the work stoppage engaged in by
these employees was protected concerted activity un-
der Section 7 of the Act. According to the Respon-
dent, the employees engaged in an unprotected partial
strike by refusing to see patients while at the same
time continuing to perform other tasks associated with
patient care such as completing patient progress notes.
The Respondent also contends that, independent of the
partial strike issue, the employees were lawfully ter-
minated for unprotected insubordination, and that two
employees, Hidgon and Thomas, voluntarily quit or
resigned.
IV. ANALYSIS
Contrary to the judge, we find that the five employ-
ees did not constitute a labor organization, and thus
did not lose their protected status as employees by
failing to give 10 days advance notice of their work
stoppage pursuant to Section 8(g). We further find, in
agreement with the judge, that their concerted refusal
to see patients until the Respondent’s upper manage-
ment responded to their memo was a short-term, sin-
gle work stoppage protected by Section 7 of the Act.
Accordingly, we find that the Respondent violated the
Act by discharging the employees.
A. 8(g) Notice
Contrary to the judge, we find as a preliminary mat-
ter, that the Respondent failed to timely raise the 8(g)
issue.11 As indicated above, the Respondent did not
11 The case cited by the judge, A & D Davenport Transportation,
Inc., 256 NLRB 463 fn. 2 (1981), enfd. 688 F.2d 844 (7th Cir.
VENCARE ANCILLARY SERVICES 969
raise the issue either in its answer to the complaint or at
the hearing, but rather waited until its posthearing brief
to the judge. We find that the Respondent’s 8(g) argu-
ment was in the nature of an affirmative defense, and
that the Respondent therefore waived the argument by
failing to raise it in a timely manner. See generally
Richard Mellow Electrical Contractors Corp., 327
NLRB 1112 (1999); Prestige Ford, 320 NLRB 1172 fn.
3 (1996); and McKeeson Drug Co., 257 NLRB 468 fn. 1
(1981).
Even assuming that the defense was timely raised,
however, we find that it is without merit. It is clear that
the notice requirement of Section 8(g) is applicable only
if the work stoppage is by a “labor organization.”12 As
shown below, the work stoppage here was not by a “la-
bor organization.”
The term labor organization is defined in Section 2(5)
of the Act as:

any organization of any kind, or any agency or em-
ployee representation committee or plan, in which
employees participate and which exists for the pur-
pose, in whole or in part, of dealing with employ-
ees concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of
work.

29 U.S.C. § 152(5).
At a minimum, for unrepresented employees collec-
tively to constitute a labor organization under Section
2(5) of the Act: (1) employees must participate; (2) the
organization, must exist, at least in part, for the purposes
of “dealing with” the employer; and (3) these dealings
must concern “grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work.”
See Electromation, Inc., 309 NLRB 990, 994 (1992),
enfd. 35 F.3d 1148 (7th Cir. 1994). As discussed below,
our review of the record reveals that while employees
obviously “participated” in the ad hoc group here, the
five employees considered together, did not satisfy the
second element of this test.
The term “dealing with” contemplates “a bilateral
mechanism involving proposals from an employee com-

1982), cert. denied 459 U.S. 1108 (1983), does not hold otherwise. In
that case, the Board did not expressly address whether the Respondent
raised the 8(g) argument in a timely manner.
12 See East Chicago Rehabilitation Center v. NLRB, 710 F.2d 397,
403 (7th Cir. 1983), cert. denied 465 U.S. 1065 (1984); Montefiore
Hospital & Medical Center v. NLRB, 621 F.2d 510, 514–515 (2d Cir.
1980); NLRB v. Long Beach Youth Center, 591 F.2d 1276, 1278 (9th
Cir. 1979); NLRB v. Rock Hill Convalescent Center, 585 F.2d 700 (4th
Cir. 1978); Bethany Medical Center, 328 NLRB 1094 (1999); Walker
Methodist Residence & Health Care Center, 227 NLRB 1630, 1631–
1632 (1977).
committee concerning subjects listed in Section 2(5),
coupled with real or apparent consideration of those
proposals by management.” Electromation, supra,
309 NLRB at 995 fn. 21. The Board has required that
“dealing with” consist of “a pattern or practice in
which a group of employees, over time, makes pro-
posals to management, [and] management responds to
those proposals by acceptance or rejection.” Stoody
Co., 320 NLRB 18, 20 (1995), quoting E.I. du Pont &
Co., 311 NLRB 893, 894 (1993). “If the evidence
establishes such a pattern or practice, or that the group
exists for a purpose of following such a pattern or
practice, the element of dealing is present. However,
if there are only isolated instances in which the group
makes ad hoc proposals to management followed by a
management response of acceptance or rejection by
word or deed, the element of dealing is missing.” Id.
Here, the record reveals no such “pattern or prac-
tice.” Rather, the five employees coalesced in re-
sponse to the announced wage cuts, they presented
their memo to management on this single issue, and
they began a work stoppage. This isolated incident
fails to establish the element of “dealing with.” True,
they acted concertedly and within the protection of
Section 7 of the Act. NLRB v. Washington Aluminum
Co., 370 U.S. 9 (1962). But, every protected activity
does not give rise to “labor organization” status
among those acting “in concert.” Like the employees
in Washington Aluminum, supra, these employees had
“no bargaining representative and, in fact, no repre-
sentative of any kind to present their grievances to
their employer. Under the circumstances, they had to
speak for themselves as best they could.” Id. at 14.
Imposing the notice requirement of Section 8(g) here
would serve only to frustrate Section 7 rights. We
agree with the General Counsel that if we were to
find, as the judge did here, that any concerted activity
by employees was the activity of a “labor organiza-
tion,” Section 8(g) would require advance notice of
any walkout by two or more employees acting in con-
cert. That result is clearly at odds with the unambigu-
ous language of both Sections 2(5) and 8(g) of the
Act.
Contrary to the judge, we find that Betances Health
Unit, supra, is distinguishable from this case. In
Betances, the Board adopted the judge’s finding that a
group of unrepresented employees was a labor organi-
zation within the meaning of Section 2(5) and that it
was required to give proper 8(g) notice prior to engag-
ing in a strike. 283 NLRB at 389. There, a group of
nine employees met at the home of another employee
to discuss problems they were having at work. At that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
meeting the employees decided to call themselves, col-
lectively, the Staff Association, and they elected a griev-
ance committee and drafted a set of demands for presen-
tation to management. Id. at 374. These demands in-
cluded an end to harassment of employees by certain
members of management, the reinstatement of three
discharged employees, the discharge of another em-
ployee, and the recognition of the grievance committee
to act as a liaison between management and the employ-
ees. Id. at 379. The Staff Association had a second
meeting and held a second election. Id. at 378. It also
presented a revised set of demands to the employer sev-
eral days later. Id. at 389. Thereafter, the staff associa-
tion’s grievance committee met with the employer re-
garding the discharge of an employee and the staff asso-
ciation engaged in a strike in furtherance of it various
demands. Id. at 375.13
The facts here are far different. The five employees
elected no leaders, they met only once as a group prior
to engaging in the work stoppage, they did not request
recognition from the Respondent, they asked to meet
with upper management on only a single issue (the wage
cuts), and they presented their grievance memo at their
regularly scheduled morning meeting prior to engaging
in the work stoppage.
Accordingly, had the Respondent timely raised the
8(g) issue, we would find that the five employees did
not meet the statutory definition of a labor organization.
Thus, they were not required to comply with the notice
provisions of Section 8(g) prior to engaging in the work
stoppage, nor were they subject to the sanctions of Sec-
tion 8(d).
We now address Respondent’s other arguments,
which the judge correctly rejected.
B. Partial Strike
As indicated above, the Respondent contends that the
five employees engaged in an unprotected partial strike
when they refused to see patients, and at the same time,
continued to perform other tasks associated with patient
care. 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

13 In light of these facts, the General Counsel agreed that the Staff
Association was a labor organization for purposes of Sec. 8(a)(5), and
argued that the employer therefore violated that Sec. when it temporar-
ily closed its facility without giving the Staff Association notice and an
opportunity to bargain about that decision. Nevertheless, the General
Counsel argued that the Staff Association was not a labor organization
for purposes of Sec. 8(g). The judge rejected the General Counsel’s
latter argument and found that 8(g) notice was required. 283 NLRB at
389. The Board agreed with the judge’s finding.
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).
We reject the Respondent’s contention that the em-
ployees here were engaged in an unprotected partial
strike. We find that any work done after the group
announced that they were refusing to see patients, was
done in preparation for, and in conjunction with the
work stoppage.14 Rather than sitting idly by after the
morning meeting, waiting to see if the Respondent’s
upper management would respond by agreeing to
meet with them, most of the five employees used that
short time to make sure that their patient records were
up-to-date. Thus, the patient progress notes com-
pleted that morning were connected to, and were the
outcome of, the patient therapies previously adminis-
tered just days or weeks before. As noted by the
judge, those employees who completed paperwork did
not expect to be compensated and they left the Re-
spondent’s premises immediately when directed to do
so by Stuart. Compare NLRB v. Fansteel Metallurgi-
cal Corp., 306 U.S. 240, 256 (1939) (sit-down strikes,
where employees occupy the employer’s premises and
refuse to leave when asked do not enjoy the Act’s
protection).
The record here demonstrates that the employees
were not attempting to set their own terms and condi-
tions of employment. Valley City, supra, 110 NLRB
at 1594–1595. At no time did these employees usurp
the managerial role of the Respondent, actively and
defiantly performing only some of their work, while
insisting that they be paid for such tactics. On the
contrary, by completing the patient progress notes on
therapies previously administered, the employees
acted responsibly prior to engaging in the work stop-
14 In reaching this conclusion, we find it unnecessary to determine
the percentage of time the employees normally spent performing
paperwork, or the percentage of billable time attributable to paper-
work. The judge found that the employees’ paperwork function took
up to 10 to 20 percent of their time and approximately 40 percent of
their billable time. However, the testimony in this regard was am-
biguous, (particularly with respect to the 40-percent figure), or was
given in response to leading questions, and the exhibits do not
clearly support the testimony. For the reasons discussed below, we
find that, regardless of the percentage of time the employees nor-
mally spent on or billed for paperwork, the fact that they performed
paperwork while waiting to hear back from upper management did
not render their work stoppage an unprotected partial strike.
VENCARE ANCILLARY SERVICES 971
page.15 Thus, we find that the employees did not lose
their statutory protection on this basis.
C. Unprotected Insubordination
Relying on Bird Engineering, 270 NLRB 1415
(1984), the Respondent also contends that the five em-
ployees forfeited the protection of the Act because they
engaged in unprotected insubordination. We find Bird
Engineering distinguishable and thus reject this conten-
tion.
In Bird Engineering, employees concertedly ignored,
as unfair, a newly established company rule, which pro-
hibited them from leaving the employer’s facility during
their lunch break. Prior to this time, the employees had
followed a practice of punching in and out from lunch
when leaving and returning to the facility. The employ-
ees ignored the employer’s warnings, clocked out in
protest, and were discharged. The Board held that their
actions “in defiance of the Respondent’s authority left
the Respondent with little choice but to take the disci-
plinary action it had announced.” Id. at 1416. The
Board noted that the employees did not engage in a
work stoppage, rather they “attempted to have it both
ways—avoiding the involvement in a labor dispute and
deciding for themselves which rules to follow and which
rules to ignore.” Id. at 1415 fn. 3.
The employees’ concerted action here was very dif-
ferent. They engaged in a work stoppage, and did not
take it upon themselves to decide which rules to follow
and which to ignore. By refusing to see any more pa-
tients until the Respondent’s upper management met
with them to discuss the wage cuts, the therapists staged
a permissible form of protest that is clearly distinguish-
able from merely ignoring rules and directives in defi-
ance of management. All work stoppages involve refus-
als to work and the argument that such refusals to “fol-
low orders” constitute insubordination is clearly con-
trary to basic Section 7 rights.
D. Indefensible Activity
Citing Bob Evans Farms, Inc. v NLRB, 163 F.3d
1012, 1024 (7th Cir. 1998), the Respondent contends
that by refusing to see patients in order to protest the
impending wage cuts, the employees here resorted to
“unduly and disproportionately disruptive or intemper-
ate means.” We also reject this contention.

15 Compare NLRB v. Reynolds & Manley Lumber Co., 212 F.2d 155
(5th Cir. 1954) (employee walked off the job and left boilers unat-
tended); U.S. Steel Co. v. NLRB, 196 F.2d 459 (7th Cir. 1952) (em-
ployee walked off and left coke ovens unattended); Marshall Car
Wheel & Foundry Co., 107 NLRB 314 (1943), enf. denied 218 F.2d
409 (5th Cir. 1955) (employee walkout at moment molten iron ready to
be poured).
It is well established that Section 7 does not protect
activity that is unlawful, violent, in breach of contract,
or otherwise indefensible.16 Washington Aluminum,
supra, 370 U.S. at 17. The Board has held concerted
activity indefensible where employees fail to take
reasonable precautions to protect the employer’s
plant, equipment, or products from foreseeable immi-
nent danger due to sudden cessation. Marshall Car
Wheel, supra, 107 NLRB at 314. In cases involving
health care employees, the Board has acknowledged
that the risk of harm caused to patients by the employ-
ees’ concerted activity is a factor in determining
whether that activity was protected. Nevertheless, the
Board has applied the same standards of conduct to
employees of health care facilities as it does to em-
ployees of other businesses. Bethany, supra, 328
NLRB 1094; citing Phases, Inc., 263 NLRB 1168,
1169 (1982). Thus, the test for whether the group’s
work stoppage lost the protection of Act is not
whether their action resulted in actual injury, but
whether they failed to prevent such imminent damage
as foreseeably would result from their sudden cessa-
tion of work. Id.
Here, the record is devoid of any evidence that pa-
tient therapy schedules were not adhered to that day.
Indeed, it is undisputed that these five employees
knew that there were other therapists on duty that day.
Thus, occupational therapists O’Rourke and Kanth-
Bohre, speech-language pathologist O’Keefe and re-
habilitation technician Marsha Bell were all available
for work that day. Stuart, himself a former physical
therapist, was available to cover, if necessary. Addi-
tionally, the physical therapists also knew they had the
discretion to delay patient appointments and resched-
ule them later in the week. And, as noted above, prior
to engaging in the work stoppage, these employees
also completed patient progress notes, thereby bring-
ing up-to-date their patient’s records. Under these
circumstances, we find that their refusal to see pa-
tients did not foreseeably create such a risk of harm as
to justify depriving them of the Act’s protection.
E. Voluntary Quit (Higdon and Thomas)
Finally, the Respondent’s argument that Higdon and
Thomas voluntarily quit or resigned must also be re-
jected. It is clear from the record that there was no
agreement to resign if management did not respond to
the employees’ memo. Higdon did keep a diary, in
which she stated that when she signed the memo, she
had in fact resigned, but the resignation was never
16 There is no contention here that the employees’ conduct was
unlawful, violent, or in breach of contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
mentioned in that memo. We further agree with the
judge that given the rapid sequence of events the morn-
ing of June 23, Thomas’ threat to quit when she met
with Stuart that morning was merely that. On June 24,
Stuart called Thomas and Higdon, along with the other
three employees, and asked them to come to the Re-
spondent’s facility on June 25, when they were all
handed discharge notices. That Thomas reiterated on
her notice that she felt she had already quit because the
Respondent did not live up to its employment agreement
is of no consequence. What matters is the Respondent’s
action, since actually it had already terminated the em-
ployment relationship. Under these circumstances, we
cannot conclude that either Higdon or Thomas voluntar-
ily quit or resigned their positions.
Accordingly, for the reasons set forth above, we find
that the work stoppage was protected under Section 7 of
the Act and that these employees were discharged for
refusing to see patients until the Respondent’s upper
management responded to their memo regarding the
wage cuts, a matter plainly affecting the terms and con-
ditions of their employment. Accordingly, we find that
by discharging employees Martha Severs, Norman de-
Caussin, Evonne Higdon, Barbara Thomas, and Lisa
Winkler for engaging in this protected activity, the Re-
spondent thereby violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Vencare Ancillary Services, Inc.,
is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. By discharging employees Martha Severs, Norman
deCaussin, Evonne Higdon, Barbara Thomas, and Lisa
Winkler on June 25, 1998 because of their protected
concerted activities, the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent violated Section
8(a)(1) of the Act, we shall order it to cease and desist
from such activity and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent will be ordered to offer Martha Sev-
ers, Norman deCaussin, Evonne Higdon, Barbara Tho-
mas, and Lisa Winkler reinstatement to their former jobs
or, if such positions no longer exist, to substantially
equivalent positions, and to make them whole for any
loss of earnings and other benefits, in the manner set out
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). We
shall also order the Respondent to remove from its
files any reference to these unlawful discharges.
ORDER
The National Labor Relations Board orders that the
Respondent, Vencare Ancillary Services, Inc., Louis-
ville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in
protected concerted activities.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Martha Severs, Norman deCaussin, Evonne Higdon,
Barbara Thomas, and Lisa Winkler, full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice to
their seniority or any other rights and privileges they
previously enjoyed.
(b) Make Martha Severs, Norman deCaussin,
Evonne Higdon, Barbara Thomas, and Lisa Winkler
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of this de-
cision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and, within 3 days thereafter, notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents, for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Owensboro, Kentucky, copies of the
attached notice marked “Appendix.”17 Copies of the
notice, on forms provided by the Regional Director
for Region 25, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-

17 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
National 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.”
VENCARE ANCILLARY SERVICES 973
spondent 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current and former employees
employed by the Respondent at any time since June 25,
1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge employees because they en-
gage in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you under Section 7 of the National Labor
Relations Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Martha Severs, Norman deCaussin, Evonne
Higdon, Barbara Thomas, and Lisa Winkler full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges they previously enjoyed.
WE WILL make whole Martha Severs, Norman de-
Caussin, Evonne Higdon, Barbara Thomas, and Lisa
Winkler for any loss of earnings and other benefits sus-
tained by them resulting from their unlawful dis-
charges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Martha Severs, Norman
deCaussin, Evonne Higdon, Barbara Thomas, and Lisa
Winkler, and WE WILL, within 3 days thereafter, no-
tify each of them in writing that this has been done and
that the discharges will not be used against them in any
way.
VENCARE ANCILLARY SERVICES, INC.

Joseph P. Sbuttoni and Michael T. Beck, Esqs., for the Gen-
eral Counsel.
John V. Nordlund, Esq. (Nordlund & Ryan), of Larkspur,
California, and Keith M. Sherman, Esq., of Louisville,
Kentucky, for the Respondent.
DECISION
I. STATEMENT OF CASE
JERRY M. HERMELE, Administrative Law Judge. In an
October 30, 1998 complaint, the General Counsel alleges
that the Respondent, Vencare Ancillary Services, Inc. (Ven-
care), violated Section 8(a)(1) of the National Labor Rela-
tions Act by discharging five therapists at a nursing home in
Owensboro, Kentucky, after they ceased work concertedly
and engaged in a strike in June 1998. The Respondent de-
nied this allegation in its November 11, 1998 answer.

This case was tried in Owensboro on February 22 and 23,
1999, during which the General Counsel called five wit-
nesses1 and the Respondent called three witnesses. Finally,
on March 29, 1999, both parties filed briefs.
II. FINDINGS OF FACT
Vencor, Inc., “America’s Long-Term Healthcare Net-
work” based in Louisville, Kentucky, owns Vencare Ancil-
lary Services, Inc. (Vencare).2 Vencare acquired the Hermit-
age Nursing & Rehabilitation Center (the Hermitage), a 90-
bed nursing home, in Owensboro, on January 1, 1998. The
Hermitage is both a long-term care facility and a short-term
location where patients are transferred from hospitals. Pa-
tients are provided with physical, occupational, and speech
therapy by a staff of nine therapists. Bryan Stuart supervises
the therapy staff and Kevin Mack oversees Vencare’s re-
gional operations, including the Hermitage. Vencare derives
annual gross revenues exceeding $100,000 in operating the
Hermitage, and performs over $50,000 in services in its other
facilities outside Kentucky (G.C. Exs. 1(c), 12; Tr. 22, 25,
39, 42–43, 110).
On May 29, 1998, Stuart met with the therapists to inform
them that Vencare was implementing a wage cut, effective

1 Lisa Winkler, one of the five discharged therapists, did not ap-
pear at the trial.
2 At trial, the General Counsel changed the name of the Respon-
dent in this case to Vencare Ancillary Services, Inc. (Tr. 192).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
July 1, 1998. The nine employees on the therapy staff were
physical therapist Norman deCaussin, assistant physical thera-
pists Evonne Higdon, Barbara Thomas and Lisa Winkler,
speech/language therapists Martha Severs and Melissa
O’Keefe, rehabilitation technician Marsha Bell, and occupa-
tional therapists Traci O’Rourke3 and Nilkanth Bohre (G.C. Ex.
7; Tr. 28, 39, 110, 172, 212, 264, 272). Stuart told deCaussin
that he was exempt from the pay cut because of his experience,
but Severs’ pay would fall from $23 to 18.03 an hour, Higdon’s
from $15.75 to $14.18 an hour, and Thomas’ from $16.35 to
$14.18 an hour4 (Tr. 50–52, 112-14, 173-75, 212-13). Unhappy
with this news, six of the eight therapists—deCaussin, Severs,
Thomas, Higdon, Winkler, and Bohre–met on Friday, June 19,
after work in a park across the street from the Hermitage. They
decided that they would meet with Stuart the following week
and inform him that they would no longer see any patients until
management met with them to discuss their concerns. Also,
they decided that a memorandum should be presented to Stuart.
To that end, Severs decided to type it up over the weekend.
Finally, the group decided that because Bohre was an alien, it
was best if he did not join in this action (Tr. 53-58, 117-18,
175, 215).
On Monday, June 22, Severs circulated the memo among the
therapists, and six signed it: O’Rourke, Severs, deCaussin,
Higdon, Thomas, and Winkler. The memo stated:

After carefully reviewing your memo concerning our
wage adjustments, we are compelled to respond in the
only manner left open to us, voicing our grievances and
strong objection to its implementation. It is not acceptable
nor will it be tolerated that our current wage scale be de-
creased July 1, 1998, as proposed by your arbitrary salary
structure.
We intend to continue to put patient care as our highest
priority. However, Vencor’s proposal of wage adjust-
ments is intolerable and totally unacceptable. Therefore,
the therapists of Hermitage Nursing and Rehabilitation
Center hereby demand the continuation of present salaries
for:

(1) Bryan Stuart, A.P.M.
(2) Traci O’Rourke, O.T.
(3) Marsha Bell, Rehab. Tech.
(4) Melissa O’Keefe, SLP
(5) Nilkanth Bohre, O.T.
(6) Martha Severs, SLP
(7) Norman deCaussin, P.T.
(8) Evonne Higdon, P.T.A.
(9) Barbara Thomas, P.T.A.
(10) Lisa Winkler, P.T.A.

(G.C. Ex. 7). Bell declined to sign, telling the others that Stuart
would not be able to do anything quickly (Tr. 266). The other
therapists decided that deCaussin should present it to Stuart.
So, they met with Stuart on Tuesday, June 23 and deCaussin
told Stuart that “some of us were not going to see patients until
some action was taken on this.” Nobody used the word

3 She is now Mrs. Witherspoon (Tr. 272).
4 It is unclear what the other five therapists’ wage cuts would be.
“strike.” Stuart then said that they could be fired for this.
According to Severs, the group expected a quick response
from Stuart, and accordingly she told Stuart that the physical
therapists were delaying seeing any patients for 24 hours; a
practice Stuart typically permitted for individual patients.
The therapists told Stuart that they would stay at the Hermit-
age to await his response (Tr. 59-61, 89, 119-22, 160-65,
239).
The therapists at the Hermitage did not use a timeclock to
record their hours at work. Rather, they completed an elec-
tronic “daily activity report” (DAR), every day, in order to
get paid for that day’s work (Tr. 33-35, 45, 145-46). In addi-
tion to seeing patients, part of each therapist’s job required
the completion of paperwork, such as patient progress notes
(R. Exs. 2, 7, 11, 13). The paperwork function took up about
10 to 20% of the therapists’ time and approximately 40% of
their billable time (Tr. 96, 103-04). Often, paperwork would
be done the day after a patient was seen because of problems
with the machine (Tr. 95, 160). The paperwork function was
billed by the therapists under “patient care” on their DARs
(Tr. 145). The DAR requested information on “patient care
hours” and “time on premises hours.” The former category
usually comprised the majority of the therapist’s workday (R.
Exs. 5, 10, 16).
After the June 23 meeting, Stuart sent a “fax” to Mack to
explain what had just happened (R. Ex. 17). O’Rourke then
told the other therapists that she would continue to see pa-
tients (Tr. 275-76). deCaussin went back to his office and
did nothing for about an hour (Tr. 61-62). Although de-
Caussin testified that he did no paperwork after the meeting
(Tr. 85-86, 99), rehabilitation technician Marsha Bell testi-
fied that deCaussin came to the office early on June 24 to
complete patient paperwork (Tr. 267-68). Severs returned to
her office to catch up on paperwork, consisting of patients’
progress notes (Tr. 123). Higdon also returned to her office
to do paperwork (Tr. 177). Thomas likewise caught up on
paperwork and did “some filing” because she “was sure that
they would. . .agree to meet with us” (Tr. 218-19). Later in
the morning, Stuart called each therapist in to his office to
ask whether each was still refusing to see patients. de-
Caussin said he was still refusing and told Stuart that he was
going to lunch and would not be back because he was feeling
ill (Tr. 61-63). Severs told Stuart that the other speech thera-
pist would see her patients. Severs added that she was going
back to her office to “complete the paperwork on patients
that I had already seen,” but that she did not expect to be
paid for the current day (Tr. 124-26, 142, 158-60). Higdon
also told Stuart that the therapists did not expect to be paid
that day and that she could see her patients on Saturday, if
necessary (Tr. 178). Thomas told Stuart that she was quit-
ting if management did not respond to the memo. Severs,
Higdon, and Thomas told Stuart they would return after
lunch (Tr. 220-21). They then went for a longer-than-usual
two-hour lunch (Tr. 126-27, 147). Mack instructed Stuart to
send the therapists home, which Stuart did upon their return
from lunch (Tr. 127, 179-80, 222, 286). deCaussin, Severs,
Higdon, and Thomas all failed to fill out a DAR for June 23
(Tr. 65-66, 137, 180-81, 224).
VENCARE ANCILLARY SERVICES 975
The five therapists, whom deCaussin referred to as “The
Vencare Five,” did not work on Wednesday, June 24, but also
decided against picketing (Tr. 194, 225). deCaussin and Severs
met at Higdon’s home to draft two more memos, which they
sent to upper management in Louisville. These memos re-
quested them to “look into this matter” (G.C. Exs. 10-11; Tr.
65, 127-28, 181). Mack consulted with his superiors and de-
cided to terminate the five therapists for insubordination by
their refusal to see patients (Tr. 29-31, 286). Stuart called the
five therapists at home and told them to come to the Hermitage
on Thursday morning, June 25. After deciding that they
wanted to meet with Stuart and Mack as a group, Stuart handed
discharge notices to Severs, deCaussin, Thomas, Higdon, and
Winkler (Tr. 67-69, 130-32, 182-83, 225-26). The notices
stated that they were discharged for:

violation of company policy, failure to perform job assign-
ment, insubordination, violation of code of ethics, and stan-
dards of practice.
(G.C. Exs. 2-6).

On September 24, 1998, Severs filed a charge against the
Respondent with the National Labor Relations Board. On Feb-
ruary 12, 1999, shortly before the trial in this case, Vencare
sent paychecks to the therapists for their partial day of work on
June 23, 1998 (G.C. Ex. 12; R. Ex. 6; Tr. 35-36, 66, 230).
III. ANALYSIS
The five therapists’ refusal to see any more patients until
management met with them to discuss the pay cuts was clearly
concerted activity. And Section 7 of the Act protects “not only
concerted activity under the sanction of a labor union, but also
concerted activity of the same nature engaged in by unorgan-
ized employees.” Vic Tanny International, Inc. v. NLRB, 622
F.2d 237, 241 (6th Cir. 1980). But, as the Supreme Court has
held, “not. . .all work stoppages are federally protected con-
certed activities.” Auto Workers Local 232 v. Wisconsin Em-
ployment Relations Board, 336 U.S. 245, 255 (1949). While
employees may strike in order to “protest and seek to change
any term or condition of their employment,” thus assuming the
risk of a loss of pay and possibility of being replaced, they may
not simultaneously strike and retain the benefits of working.
Therefore, partial or intermittent strikes, where employees con-
tinue working on their own terms, unilaterally determined, are
not protected by Section 7 of the Act. First National Bank of
Omaha, 171 NLRB 1145, 1149–1151 (1968); Valley City Fur-
niture, 110 NLRB 1589 (1954), enfd. 230 F.2d 947 (6th Cir.
1956). For example, employees cannot “refuse to work on
certain assigned tasks while accepting pay or while remaining
on the employer’s premises” Audubon Health Care Center, 268
NLRB 135, 136 (1983). Likewise, employees cannot repeat-
edly refuse to perform additional work such as mandatory over-
time. Sawyer of Napa, 300 NLRB 131, 137 (1990). But they
can engage in a single, walkout Daniel Construction, 277
NLRB 795 (1985); Enamel Products and Plating, 236 NLRB
1611 (1978).
Here, the five therapists continued working after announcing
their intent not to see any new patients after the meeting with
Supervisor Stuart on the morning of June 23. Specifically,
Severs, Higdon, and Thomas all admitted going back to their
offices to complete paperwork on old patients before lunch.
While it is unknown what Winkler did after the meeting with
Stuart, it appears from Bell’s credible testimony that de-
Caussin also finished up paperwork by returning to the office
the next day, in the early morning hours of June 24.5 Also,
Severs told Stuart on June 23 that the four physical therapists
would delay seeing any new patients for 24 hours, while the
other speech therapist would see all of Severs’ patients.
Finally, Higdon later told Stuart that she might see new pa-
tients in a few days,6 and Thomas told Stuart that she would
quit if management did not respond to the group’s memo.
The Presiding Judge concludes that the five therapists’
work stoppage was protected by Section 7 of the Act. The
General Counsel correctly characterizes the “old patient”
paperwork performed after the group’s announcement to
Stuart as incidental wind-up work done in preparation for
their work stoppage regarding new patients. Moreover, they
told Stuart that they did not expect to be paid for this paper-
work and immediately left the premises when Stuart told
them to do so after lunch on June 23. Audubon, supra. Fur-
ther, given the rapid-fire sequence of events after June 23,
Thomas’ threat to quit was merely that. Thus, it is concluded
that she did not resign. Lastly, the employees did not “pick
and choose” when they would perform their work duties by
announcing either a 24-hour or few days’ delay in seeing
patients. Audubon, supra at 137. Rather, their action was
simply a short-term, single work stoppage–the first of its
kind–whose only goal was to obtain a meeting with man-
agement. NLRB v. C. J. Krehbiel Co., 593 F.2d 262 (6th Cir.
1979).
But the concerted work stoppage had a fatal flaw. Section
8(g) of the Act requires that:

A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any
health care institution shall, not less than ten days prior
to such action, notify the institution in writing and the
Federal Mediation and Conciliation Service of that in-
tention, except that in the case of bargaining for an ini-
tial agreement following certification or recognition the
notice required by this subsection shall not be given un-
til the expiration of the period specified in clause (B) of
the last sentence of section 8(d) of this Act [subsection
(d) of this section]. The notice shall state the date and
time that such action will commence. The notice, once
given, may be extended by the written agreement of
both parties.

As the Board has recognized, Congress’ purpose in enacting
Section 8(g) in 1974 was “to allow a health care institution to
make arrangements for the continuity of patient care in the

5 Significantly, while deCaussin testified that he did no paperwork
after the June 23 meeting, he did not rebut Bell’s later testimony
about the events of June 24.
6 The Respondent contends that Thomas also told Stuart that the
group was postponing seeing patients. But the Presiding Judge does
not read Thomas’ testimony that way (Tr. 240-41).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976
event of a strike or picketing by a labor organization.” Walker
Methodist Residence, 227 NLRB 1630, 1631 (1977).
Although the Section 8(g) issue was raised for the first time
in the Respondent’s brief, this argument warrants consideration
because the facts are clear. See A & D Davenport Transporta-
tion, 256 NLRB 463 n. 2 (1981). First, the Hermitage was a
health care institution as defined by Section 2(14) of the Act.
Local Union No. 200, S.E.I.U., 263 NLRB 400 (1982). Second,
the five therapists failed to give management any notice of their
work stoppage. The third and pivotal matter is whether the
Vencare Five constituted a labor organization under Section
2(5) of the Act, which reads:

The term “labor organization” means any organization of any
kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes,wages, rates of pay, hours
of employment, or conditions of work.

Over the decades, the courts have liberally defined this term,
declaring that “the complete absence of by-laws or a formal
structure is irrelevant.” NLRB v. Sweetwater Hospital Assn.,
604 F.2d 454, 457 fn. 5 (6th Cir. 1979). See also NLRB v.
Cabot Carbon Co., 360 U.S. 203, (1959). Although the Board
has stated that the notice requirements of Section 8(g) “run to
the Unions, not employees” East Chicago Rehabilitation Cen-
ter, 259 NLRB 996, 999 (1982), enfd. 710 F.2d 397 (7th Cir.
1983), and that “[a] brief work stoppage by a few unorganized
employees” does not trigger the notice requirement of Section
8(g), Walker, supra at 1631, the Vencare Five were hardly a
“totally unstructured” group. Compare A & D Davenport
Transportation, supra. They held several meetings, decided on
a course of action, selected a leader, and embarked upon the
work stoppage. Thus, in the Presiding Judge’s view, the
instant group, comprising a majority of the facility’s therapy
staff, did not differ significantly from the “Staff Association”
in Betances Health Unit, 283 NLRB 369 (1987), which the
Board concluded was a labor organization, notwithstanding
the lack of any formal structure whatsoever. Indeed, “[a]
group of individuals may comprise a labor organization,”
even though they lack any formal structure. Prime Time
Shuttle International, 314 NLRB 838, 841 (1994). There-
fore, it is concluded that the striking therapists met the statu-
tory definition of Section 2(5).
In sum, the therapists’ work stoppage was concerted activ-
ity protected by Section 7 of the Act. However, their failure
to comply with the notice requirement of Section 8(g) ren-
dered their activity unprotected by Section 8(d) of the Act.
Therefore, the Respondent properly terminated them.
IV. CONCLUSIONS OF LAW
1. The Respondent, Vencare Ancillary Services, Inc. is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The five striking therapists—Martha Severs, Norman
deCaussin, Evonne Higdon, Barbara Thomas, and Lisa
Winkler—are a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(1) of the
Act by terminating employees Martha Severs, Norman de-
Caussin, Evonne Higdon, Barbara Thomas, and Lisa Winkler
on June 25, 1998.
[Recommended Order omitted from publication.]