Waters of Orchard Park

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 642 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
Orchard Park Health Care Center, Inc. d/b/a Waters
of Orchard Park and Carol A. Gunnersen. Case
3–CA–23704
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND MEISBURG
The issue presented in this case is whether two nursing
home employees were engaged in protected concerted
activity under the National Labor Relations Act (the Act)
when they called the New York State Department of
Health Patient Care Hotline to report excessive heat in
the Respondent’s nursing home. The administrative law
judge found that the employees were so engaged and,
thus, that the Respondent, Waters of Orchard Park, vio-
lated Section 8(a)(1) of the Act when it suspended and
discharged one of the employees and suspended the sec-
ond.1 We agree with the judge that the employees were
engaged in concerted activity. However, contrary to the
judge and for the reasons discussed below, we find that
the employees’ activity was not protected under the Act
because it did not relate to a term or condition of their
employment. Accordingly, we shall dismiss the com-
plaint.
I. THE FACTS
The Respondent operates a nursing home in the Buf-
falo, New York area. It was very hot at the end of June
20022 and even hotter during the first week of July. The
older portions of the nursing home did not have central
air-conditioning. To deal with the heat, the Respondent
began furnishing bottled spring water for the staff, and,
on July 1, the Respondent installed two freestanding air-
conditioners in the unit of the nursing home involved in
this case.
On July 1 and 3, two patients were sent to the hospital.
Both showed symptoms of dehydration. When Kathleen

1 On February 13, 2003, Administrative Law Judge Marion C. Lad-
wig issued the attached decision. The Respondent filed exceptions, a
supporting brief, and a reply brief. The General Counsel filed an an-
swering brief.
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 Deci-
sion and Order.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
2 All dates hereafter are in 2002.
Reed, a certified nursing assistant (CNA), arrived at
work at 2 p.m. on July 4, two more patients had been
sent to the hospital. Reed observed that the patients were
refusing to eat and drink, were unresponsive, and were
taking off their clothes. When Carol Gunnersen, a li-
censed practical nurse acting as charge nurse, arrived at
3:30 p.m., she noticed that patients were lethargic and
were taking their clothes off. There was no bottled water
available for the staff on that day, since it was locked in
Nursing Director Tracey Sullivan’s office during her
holiday absence.
Reed went on break around 4:30 p.m. with Gunnersen
and Cynthia Fields, the nursing supervisor. Reed was not
feeling well and asked if she could go home. Fields told
Reed that Sullivan had said that no one could leave.
Later that afternoon, Gunnersen dialed the phone number
for the New York State Department of Health Patient
Care Hotline and tossed the phone to Reed. Reed stated
that there was no water for staff members, that several
residents were dehydrated, and that she was very hot and
wanted them to come look into the conditions. Reed did
not identify herself truthfully, but said that she was a
relative of a resident.
The next morning, the Respondent’s assistant adminis-
trator, Peter Fadeley, learned from another CNA that
someone had called the hotline. Fadeley contacted the
facility’s administrator, who was on vacation, and then
called Sullivan at home to come in early to investigate.
Reed was called into Sullivan’s office and questioned
about the call to the hotline. Initially, Reed claimed that
she had no knowledge of the call. Reed was later called
back to meet with Sullivan and Fadeley, and they told
her that they had learned from reliable sources that she
had made the call. Reed then admitted that she had made
the call and began to cry. Reed was asked to write a
statement. At first, she wrote that there was “a lot of jok-
ing” about how hot the unit was and that there was no
spring water for the staff. Sullivan then told Reed to
elaborate and said, “What about the residents that went to
the hospital with dehydration? . . . Write that on there.”
Reed added to her statement, “I stated that there was no
water on unit, very hot and several residents were re-
cently sent to hospital. I hung up and everyone was
laughing.” Reed explained in her testimony that she
meant that she heard her coworkers say, “[Y]ou’re in
trouble for making that phone call.” Reed was suspended
pending further investigation and was asked to leave the
premises. Gunnersen was suspended on July 6. She never
returned to work. On July 11, the Respondent dis-
charged Reed.
341 NLRB No. 93
WATERS OF ORCHARD PARK 643
The New York State Department of Health sent an in-
spector to the nursing home on July 8. No violations of
State or Federal regulations were found.
II. THE JUDGE’S DECISION
The judge found that Reed and Gunnersen’s conduct in
calling the hotline was concerted activity. We agree.
The judge also found that the call involved a working
condition. He reasoned that a posted patient care hotline
notice—informing employees that they are “required” by
New York State Public Health Law to report physical
abuse, mistreatment, or neglect—is an important part of
the employees’ working conditions in caring for the pa-
tients. The judge concluded that the Respondent unlaw-
fully suspended Reed and Gunnersen to discourage em-
ployees in their unit from reporting any unsafe conditions
for patients in the facility’s old section and that the Re-
spondent feared that employees’ using the hotline to re-
port the excessive heat in violation of a State regulation
requiring “safe and comfortable temperature levels”
could adversely affect the State license to operate the
nursing home.
III. THE PARTIES’ CONTENTIONS
The Respondent claims that the employees’ conduct in
calling the State hotline was not protected activity be-
cause reporting concerns about the patients did not in-
volve a complaint about working conditions and because
an employee’s personal concern is not protected. Even if
their conduct was protected, the Respondent continues,
Reed and Gunnersen lost such protection because they
lied to the State about who they were and the reason for
their call, they lied to management during the investiga-
tion, they violated work rules by lying and by failing to
follow proper channels for complaints, and their motiva-
tion was improper and disloyal under NLRB v. Electrical
Workers Local 1229 (Jefferson Standard), 346 U.S. 464
(1953). The Respondent asserts that it acted against Reed
and Gunnersen because they made false and fraudulent
statements in the hotline call and because they provided
false information about the call in the subsequent internal
investigation.
The General Counsel contends that Reed and Gun-
nersen called the State hotline because patient safety was
at risk due to the excessive heat. The issue, according to
the General Counsel, is not simply whether general pa-
tient concerns are working conditions, but whether the
State’s legal mandate for employees to report unsafe
conditions is a working condition, and therefore, pro-
tected under the Act. The General Counsel argues that
the judge properly concluded that “an important part of
the employees’ working conditions” is the State require-
ment to report any “unsafe condition.”
The General Counsel also argues that Gunnersen and
Reed did nothing to lose the protection of the Act. The
General Counsel claims that the report was not rendered
fraudulent by Reed’s statement that there was “no water”
as opposed to no bottled or spring water or by any dis-
tinctions between Reed’s observing that the residents
exhibited symptoms of dehydration and an actual diag-
nosis of dehydration. Further, the General Counsel as-
serts, Reed and Gunnersen, did not act with malicious
intent.
IV. ANALYSIS
Section 7 of the Act provides employees with the right
to engage in concerted activities for the purpose of col-
lective bargaining or “other mutual aid or protection.”
The judge correctly found that Reed and Gunnersen were
engaged in concerted activity because they acted together
in making the phone call. Meyers Industries, 281 NLRB
882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
However, the key issue is whether Reed and Gunnersen’s
conduct in calling the hotline was protected concerted
activity.
It is well established that Section 7 extends to em-
ployee efforts “to improve terms and conditions of em-
ployment or otherwise improve their lot as employees
through channels outside the immediate employee-
employer relationship.” Eastex, Inc. v. NLRB, 437 U.S.
556, 565 (1978). However, “some concerted activity
bears a less immediate relationship to employees’ inter-
ests as employees than other such activity,” and “at some
point the relationship becomes so attenuated that an ac-
tivity cannot fairly be deemed to come within the ‘mu-
tual aid or protection’ clause.” Id. at 567–568. Here,
Reed and Gunnersen’s call to the State health department
hotline did not involve a term or condition of their em-
ployment and was not otherwise an effort to “improve
their lot as employees.” Id. at 565. Reed and Gunnersen
explicitly disclaimed an interest in their own working
conditions when they called the hotline. Reed called the
hotline to express their concern about patients, as distin-
guished from an effort to improve their lot as employees.
Indeed, Reed went out of her way, to the point of lying,
to tell the authorities that she was a relative of a resident.
If Reed wanted to complain about employee conditions,
she need only to have truthfully identified herself as an
employee. In addition, it is significant that the hotline
that she called was the “Patient Care Hotline.”
The Board has held repeatedly that employee concerns
for the “quality of care” and the “welfare” of their pa-
tients are not interests “encompassed by the ‘mutual aid
or protection’ clause.” Lutheran Social Service of Min-
nesota, 250 NLRB 35, 42 (1980) (concerted activity of

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
employees of a home for troubled youth who complained
about planned policy changes found unprotected, where
the employees were found to be disturbed by decisions
by management and a “perceived lack of competency of
management which, in their view, threatened the ‘quality
of care,’ ‘the quality of the program,’ and the ‘welfare of
the children’”) See also Good Samaritan Hospital &
Health Center, 265 NLRB 618, 626 (1982) (concerted
activity of hospital’s occupational therapists who com-
plained about the management of the hospital’s devel-
opmental learning program found unprotected, where the
therapists were concerned with the “quality of the care
offered by the program and the welfare of the children”)
Complaints motivated by concerns for “residents’ living
conditions” have also been found to be “not directly re-
lated to the employees’ working conditions.” Damon
House, 270 NLRB 143, 143 (1984) (concerted activity of
counselors at a drug treatment center found unprotected,
where counselors sent a letter attacking the center’s ex-
ecutive director and his impact on the adolescent resi-
dents).
The fact that Reed and Gunnersen were reporting to
State authorities does not make the activity protected. In
Autumn Manor, 268 NLRB 239 (1983), nursing home
employees testified at the nursing home’s relicensing
hearing before the Kansas Department of Health and
Environment about alleged patient abuse. The Board
found that the employees’ testimony about manage-
ment’s treatment of patients “had no direct relationship
to the working conditions of employees.” Id. As with
the employees’ testimony in Autumn Manor, the hotline
call to the New York State Department of Health has no
direct relationship to the working conditions of employ-
ees.
Like the employees in Lutheran Social Service, Good
Samaritan Hospital, Damon House, and Autumn Manor,
Reed and Gunnersen were concerned about the quality of
the care and welfare of the residents, not their own work-
ing conditions. Indeed, as noted above, they conceded at
the hearing in this matter that they did not call the hotline
to address their own working conditions. Gunnersen
testified, “[W]hen we used the line that day, it wasn’t for
working conditions. It wasn’t meant for the staff mem-
bers. It was about what was going on with the resi-
dents.” When Reed was asked what was the focus of the
state requirements, she responded: “[a]ny and all con-
cerns with regards to the patients.” Our dissenting col-
leagues would have us ignore Reed and Gunnersen’s
testimony about their motive for calling the hotline be-
cause employees’ subjective characterizations of their
conduct are not determinative of the conduct’s protected
status. We agree that if, on the objective facts, the phone
call had been to protect employee working conditions,
Reed and Gunnersen’s testimony to the contrary would
not necessarily remove the conduct from the protection
of the Act. However, as discussed, the objective facts are
the other way, and the Reed and Gunnersen testimony
supports the objective facts.
The cases relied on by our dissenting colleagues are
distinguishable. In Misericordia Hospital Medical Cen-
ter, 246 NLRB 351 (1979), enfd. 623 F.2d 808 (2d Cir.
1980), the nurses’ concerns—staffing levels and the
number of patients to be cared for—were directly related
to the nurses’ working conditions. That is, the nurses
were complaining about their own staffing levels and the
impact on patients. By analogy if, in the instant case, the
employees were complaining that their own thirst was
making them unable to care for patients, that could be
protected activity. Similarly, in Parr Lance Ambulance
Service, 262 NLRB 1284 (1982), enfd. 723 F.2d 575 (7th
Cir. 1983), the employees’ concern—inadequate equip-
ment—was directly related to the performance of their
work. In addition, those employees faced the possibility
of license revocation or a lawsuit if they failed to provide
adequate emergency medical care because they lacked
the State-required equipment to do so. Here, Reed and
Gunnersen did not call the hotline because of a percep-
tion that their ability to deliver patient care was impaired
or imperiled. Further, there is no showing that using or
failing to use the hotline to complain about the heat
would have any real or potential impact on Reed and
Gunnersen’s employment.
The dissent, however, goes beyond precedent to find
that, in the health care field, patient care should not be
separated from working conditions. By that reasoning,
any concerted conduct directed toward care would be
protected. We do not think that Section 7 should be ex-
panded to cover every situation where patient care is
involved. We adhere to the Supreme Court’s teaching in
Eastex, Inc. v. NLRB, 437 U.S. 556, 567–568 (1978), that
“at some point the relationship [between concerted activ-
ity and employees’ interests as employees] becomes so
attenuated that an activity cannot fairly be deemed to
come within the ‘mutual aid or protection’ clause.” We
find that the relationship between Reed and Gunnersen’s
hotline call and their interests as employees was—as they
themselves implicitly admit—so attenuated that it does
not properly fall within the scope of Section 7.
Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d 320 (7th
Cir. 1976), cited by our dissenting colleagues, is inappo-
site. In that case, the employee alerted his fellow em-
ployees to supervisory deficiencies “which potentially
affect on-the-job safety and performance.”
WATERS OF ORCHARD PARK 645
Our dissenting colleagues argue that the fact of disci-
pline (discharge of Reed and suspension of Gunnersen)
shows that their complaint was related to employment.
Our colleagues have confused conduct with penalty. In
employment cases, the discipline virtually always affects
employment. However, under the NLRA, if the conduct
is unprotected, the discipline therefore is lawful, irrespec-
tive of whether the discipline affects employment.
Finally, we note that Reed and Gunnersen were acting
in the interests of the nursing home residents, and we
commend them for their conduct. However, as discussed,
that conduct is not protected by Section 7 of the Act.3
The Act protects employees’ interests as employees. The
interests of the nursing home residents are not protected
by the Act. Reed and Gunnersen may be entitled to relief
under a State whistleblower statute or under the public-
policy exception to the employment-at-will doctrine.4
We find, however, that they are not entitled to relief un-
der the Act, and accordingly, we dismiss the complaint.
ORDER
The complaint is dismissed.

MEMBER MEISBURG, concurring.
In response to unhealthful conditions at the Respon-
dent’s nursing home, employees Kathleen Reed and
Carol Gunnersen telephoned New York State’s Patient
Care Hotline, as State law required them to do. When
the Respondent learned who had placed the call, it dis-
charged Reed and suspended Gunnersen. Gunnersen
then filed an unfair labor practice charge with the Board.
I have no doubt that the employees did the “right”
thing, however that term be defined. As both employees
testified, they acted in the interest of their patients. Nev-
ertheless, I concur in today’s decision that their disci-
pline did not violate the Act.
The National Labor Relations Act was enacted to vin-
dicate the right of workers to join together (or not) to
improve their working conditions. It protects both un-
ion-related activity and “other concerted activities for the
purpose of . . . other mutual aid or protection.” Over the
years, the Board and the courts have given meaning to
that statutory language. For example, in Washington
Aluminum, the Supreme Court affirmed the Board’s view
that “mutual aid or protection” protects the right of unor-
ganized employees to walk off the job to protest working
conditions.1 In Eastex, the Court affirmed the Board’s

3 Since we find Reed and Gunnersen’s conduct unprotected, we need
not address the Respondent’s arguments that they lost any such protec-
tion.
4 See Davis, Defining the Employment Rights of Medical Personnel
Within the Parameters of Personal Conscience, 1986 Det. C.L. Rev.
847, 856–857 (1986).
1 NLRB v. Washington Aluminum, 370 U.S. 9 (1962).
view that it protected employee leafleting on the em-
ployer’s property urging fellow employees, among other
things, to oppose a State right-to-work provision and to
register to vote in order to “defeat our enemies and elect
our friends.”2
But the statutory language is not infinitely malleable. It
was not intended to protect every kind of concerted activ-
ity, no matter how salutary. To hold otherwise would be
one more example of a “hard case making bad law.”
It is undoubtedly a good thing that the employees in
this case complied with the State law requiring them to
report the conditions they found. It is even more of a
good thing when the State law at issue protects an inter-
est as important as patient care. But the National Labor
Relations Act is not a general whistleblowers’ statute.
Absent an intent to improve wages, hours, or working
conditions, concerted action of the type in this case can-
not be deemed “mutual aid or protection.” Because the
employees here testified that their sole motive was to act
in the interest of their patients, we cannot find that their
conduct was protected by the Act.
The dissent contends that the requisite link to “mutual
aid or protection” is present both because the employees
had a legal obligation to report patient abuse and because
patient care is inextricably bound up with the working
conditions of health care workers. I join the majority in
rejecting both of those arguments. As stated above, both
employees testified that their motive in calling the hot-
line was to protect their patients. Neither employee,
when questioned at the hearing, mentioned either em-
ployee working conditions or State law even as a motive.
Therefore, on this record I do not believe we can find,
consistent with the statutory purpose, that the bare exis-
tence of the State law is sufficient to bring the employ-
ees’ conduct within the ambit of “mutual aid or protec-
tion.”3
I am also unwilling to find that the patients’ well-being
was itself a working condition. Patient well-being is, for
all intents and purposes, the “product” of a health care
facility. Although employee interest in that product is
desirable, it is not thereby converted into a working con-
dition. Factory workers, too, may manifest a strong in-
terest in the goods they produce, but the nature of those
goods is not a condition of employment, and certainly
not a bargainable subject.
2 Eastex, Inc. v. NLRB, 437 U.S. 556, 559–560 (1978).
3 Unlike my dissenting colleagues, I see no problem in letting this
case turn on the employees’ own testimony concerning their motive in
placing the call to the hotline. Motive is often an issue in Board cases,
especially those where discrimination is alleged. It is settled that mo-
tive is a question of fact. See, e.g., NLRB v. McClain of Georgia, Inc.,
138 F.3d 1418, 1424 (11th Cir. 1998).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
Finally, I note that the State law which in this case ob-
ligates health care employees to report patient abuse also
prohibits employer retaliation against whistleblowers.4
Although not strictly relevant to our inquiry, the avail-
ability of a remedy in some other forum helps bolster my
view that we may not expand the coverage of the Act by
decisional fiat just so we might reach a desirable result.
In short, the “mutual aid or protection” clause of Sec-
tion 7 is not a whistleblowers’ protection act, even when
the whistleblowing is both concerted and undertaken
with the best of intentions. Accordingly, I agree with the
majority’s disposition of this case.

MEMBERS LIEBMAN and WALSH, dissenting.
Contrary to our colleagues, we would find that Kath-
leen Reed and Carol Gunnersen were engaged in pro-
tected activity when they called the New York State De-
partment of Health Patient Care Hotline to report exces-
sive heat in the Respondent’s nursing home. As ex-
plained below, we believe that Reed and Gunnersen’s
concerns over patient care necessarily involved their
working conditions and that Board law supports this con-
clusion. We further find that Reed and Gunnersen did
nothing to lose the protection of the Act.
Facts
The relevant facts are not in dispute. At the beginning
of July 2002, Reed, a certified nursing assistant (CNA),
Gunnersen, a licensed practical nurse acting as charge
nurse, and other employees at the nursing home were
concerned about the heat in the Respondent’s nursing
home and its effects on the nursing home residents. Sev-
eral of the employees had talked to the supervisors about
the high temperatures and the fact that the residents did
not look well. The employees had been told to “push
extra fluids” on the residents. The Respondent had
started providing bottled spring water, popsicles, and
cooling headbands for the staff, and it had installed two
freestanding air-conditioners in the unit of the facility
that was not centrally air-conditioned.
On July 4, it was extremely hot in the unit, and the
residents were lethargic, slumped over, and taking off
their clothing. Reed herself was feeling sick. She testi-
fied that her ears were ringing, that she was feeling faint,
and that she was sweating profusely. She was denied

4 See NY Pub Health Law, § 2803-d. New York State law has long
provided statutory protection for whistleblowers. See NY Lab Law §
740. In 2002, before the events in this case, the State enacted special
whistleblower protection for health care workers, including nursing
home employees. NY Lab Law § 741. Under that statute health care
workers may bring a civil action against their employer for suspending,
discharging, or otherwise retaliating against them for reporting what
they, in good faith, believe to constitute improper quality of patient
care.
permission to go home. Later that day, Gunnersen dialed
the phone number for the State health department hotline
and tossed the phone onto the desk next to Reed. Reed
picked up the phone, identified herself as a family mem-
ber of one of the residents, stated that there was no water
for staff members, that several residents were dehy-
drated, and that she was very hot and wanted them to
come and look into the conditions. The next day, after
initially denying that she had been the one to call the
hotline, she admitted that she had made the call, and she
gave a statement to that effect. Nursing Director Tracey
Sullivan told Reed that she could lose her CNA certifica-
tion and that Gunnersen could lose her license for calling
the hotline. Reed was suspended that day and discharged
on July 11. Gunnersen was suspended on July 6 and did
not return to work.
Analysis
A. Reed and Gunnersen’s Conduct was Protected
As the judge found, the Respondent posted a notice is-
sued by the New York State Department of Health. That
notice required employees and licensed health profes-
sionals, pursuant to the New York State Public Health
Law, “to report any instance of patient physical abuse,
mistreatment or neglect” to the New York State Depart-
ment of Health. The notice stated that “the Patient Care
Hotline may be used 24 hours a day, seven days a week,
to report nursing home situations requiring immediate
action.”
This notice was posted in several conspicuous places
in the nursing home—in the employee dining room and
on the side of the elevator, directly across from the
nurses’ station. We agree with the judge that the re-
quirement to protect patients by reporting an unsafe con-
dition, set forth in the prominently displayed State notice,
was an important part of the employees’ working condi-
tions in caring for the patients.1 There is no question that
the Respondent’s suspension and discharge of Reed and
its suspension of Gunnersen for calling the hotline to
report the dangerously hot conditions in the nursing
home directly interfered with their fulfillment of this
important job duty.
Furthermore, there can be no question that the severity
of the heat directly affected the manner in which the
1 Our concurring colleague asserts that we have found that this re-
quirement was an important part of the employees’ working conditions
because the employees had a legal obligation to report patient abuse. It
appears that our colleague has misinterpreted our position. The re-
quirement to report patient abuse was an important part of the employ-
ees’ work conditions—not because it was their legal duty—but because
the Respondent, their employer, incorporated the State-law obligation
into their working duties by conspicuously posting the State health
department notice throughout the nursing home.
WATERS OF ORCHARD PARK 647
nursing home employees carried out their resident-care
duties. Resident care, after all, is the responsibility of the
nurses and nursing assistants, and the conditions that
affect the residents surely have a profound effect on how
the nurses and nursing assistants carry out that duty.
This is illustrated by the fact that the nurses and nursing
assistants were told to “push extra fluids” on the resi-
dents because of the heat. The severity of the heat was
directly related to how much they would have to “push
fluids” or take other extraordinary measures to care for
the residents. Accordingly, Reed and Gunnersen’s call to
the State hotline was directly related to conditions that
affected their job duties and thus their terms and condi-
tions of employment.
The finding that Reed and Gunnersen’s conduct was
protected is supported by Board law. In Misericordia
Hospital Medical Center, 246 NLRB 351 (1979), enfd.
623 F.2d 808 (2d Cir. 1980), a head nurse was found to
be engaged in protected activity when she participated in
preparing an ad hoc committee’s report to the Joint
Commission on Accreditation of Hospitals. The nurse
was required by the Code of Nurses of the American
Nurses Association to improve the standards of nursing
care and to join with others to meet the public’s health
needs. Compliance with that code was a condition of the
nurse’s employment, and her cooperation with the ad hoc
committee was a step toward meeting that professional
obligation. Here, compliance with the posted health de-
partment notice was a condition of the employees’ em-
ployment, and Reed and Gunnersen’s call to the hotline
was a step toward meeting that obligation.
Parr Lance Ambulance Service, 262 NLRB 1284
(1982), enfd. 723 F.2d 575 (7th Cir. 1983), is similarly
supportive. There, an ambulance driver and an emer-
gency medical technician (EMT) were found to be en-
gaged in protected concerted activity when they refused
to operate an inadequately equipped ambulance. The
Board noted that under State regulations, an EMT’s certi-
fication could be revoked for failing to perform an indi-
cated procedure for which training has been received and
that the employees could be sued if they failed to provide
adequate care because they lacked State-required equip-
ment. Here, Reed and Gunnersen maintain the necessary
certification and licensing for their respective positions
that require a mandated level of patient care, which is a
condition of their employment with the Respondent or
any other long-term care provider. The Respondent is
aware of the importance of employee certification and
licensing as demonstrated by Sullivan’s statement that
Reed and Gunnersen could lose their certification and
license, respectively, for calling the hotline. In enforcing
the Board’s order in Parr Lance, the Seventh Circuit
stated, “To the extent that an employee’s duties relate to
providing patient care . . . a lack of necessary medical
equipment affects both the patient’s welfare and the
working conditions of the health care provider.” 723
F.2d at 578. In this case, the high temperatures in the
nursing home, similar to the lack of necessary equipment
in Parr Lance, affected both the residents’ welfare and
the working conditions of the nursing home employees.
Lutheran Social Service of Minnesota, 250 NLRB 35
(1980); Good Samaritan Hospital & Health Center, 265
NLRB 618 (1982); and Damon House, 270 NLRB 143
(1984), relied on by the majority, are distinguishable.
Those cases all involved employee complaints directed
to the management of the facility or the philosophy of the
employer’s programs, rather than actual employee con-
cerns about the patients and their care. Autumn Manor,
268 NLRB 239 (1983), is also distinguishable inasmuch
as the employees in that case testified at a relicensing
hearing about alleged patient abuse and did not give any
specific testimony regarding the patients to whom they
provided care.
As the majority and concurring opinions point out,
Reed and Gunnersen admitted that they called the hotline
out of concern for the residents. However, it is well es-
tablished that:

The motive of the actor in a labor dispute must be dis-
tinguished from the purpose for his activity. The mo-
tives of the participants are irrelevant in terms of de-
termining the scope of Section 7 protections; what is
crucial is that the purpose of the conduct relate to col-
lective bargaining, working conditions and hours, or
other matters of “mutual aid or protection” of employ-
ees. [Citation omitted.]

Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d 320, 328 fn. 10
(7th Cir. 1976). Indeed, in NLRB v. Parr Lance Ambulance
Service, the Seventh Circuit reiterated this principle when it
found that the ambulance driver’s concern over the ade-
quacy of medical equipment qualified as a working condi-
tion. The court stated: “Even if a health care employee
phrases a complaint about a situation solely in terms of its
effect on patient welfare, the employee is protected if the
situation relates to a working condition.” 723 F.2d at 578.
Applying this principle here, “what is crucial” is that “the
purpose of the conduct,” seeking relief from the danger-
ously high temperatures in the nursing home, “relate[d] to. .
. working conditions.” Dreis & Krump, supra at 328 fn. 10.
Further, in the health care field, it is illogical to sepa-
rate patient care from working conditions. “In the health
care field patient welfare and working conditions are
often ‘inextricably intertwined.’” NLRB v. Parr Lance
Ambulance Service, 723 F.2d 575, 577 (7th Cir. 1983),

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
quoting Misericordia Hospital Medical Center v. NLRB,
623 F.2d 808, 813 (2d Cir. 1980).2 “To a health care
professional, such as a registered nurse, the handling of
patient care is a condition of employment.” Holy Rosary
Hospital, 264 NLRB 1205, 1210 (1982). In this case, the
care of the residents was an explicit condition of the job
the employees were expected and required to perform.
When Reed and Gunnersen called the hotline, they were
caring for the residents and acting in accordance with
that explicit job condition.3
Contrary to the majority, we do not believe that the in-
tertwining of patient care with the working conditions of
those in the health care field impermissibly expands the
scope of Section 7. Taking care of the patients here is the
work of Reed and Gunnersen. If they cannot protect their
patients from the effects of excessive heat, they cannot
fully perform their work. The link between their call to
the hotline and their interests as employees is, therefore,
direct and in no way attenuated.
B. Reed and Gunnersen Did Not Lose the Act’s
Protection
We reject the Respondent’s contention that Reed and
Gunnersen lost the Act’s protection. Although Reed did
not give her identity when she called the hotline and al-
though she initially denied that she had called the hotline,

2 In claiming that patients’ well being is not a working condition, the
concurrence draws an analogy between health care workers and factory
workers. Similar analogies have been rejected by the courts. Parr
Lance Ambulance Service, supra at 578 (ambulance driver providing
patient care not analogous to car mechanic servicing an ambulance);
see Beth Israel Hospital v. NLRB, 437 U.S. 483, 508 (1978) (health
care cases “give rise to unique considerations that do not apply in the
industrial settings with which the Board is more familiar”).
3 Indeed, one could argue, as does Professor Cynthia Estlund, that
the “open-textured language of section 7, read in light of the over-
whelming evidence of the meaning of work for employees, should lead
to the protection of employees’ right to express their own concerns
about the quality of the product or service they produce.” She notes
while considerations of economic security and personal satisfaction
inhibit employees’ willingness to “go public” with criticism of their
employer, those same considerations might push employees to the
conclusion that “informing the public of problems and pressuring the
employer to institute changes” serves the long-run interests of the en-
terprise and its employees. She also points out that “many professional
employees are bound by professional ethics to act in the interest of their
patients or clients and to adhere to standards of professional integrity
that transcend whatever obligations of loyalty they may have to their
employer” and that nonprofessional employees, such as nursing aides
and child care workers, “who tend to be relatively low-paid, may have
chosen these less lucrative jobs because of the satisfaction they gain
from serving people and doing good.” Estlund concludes that
“[e]mployees who join together and express their shared concerns
about how their work and their enterprise affect the world are indeed
engaged in ‘concerted activity for mutual or protection.’” Estlund,
What Do Workers Want? Employee Interest, Public Interests, and
Freedom of Expression Under the National Labor Relations Act, 140
U. Pa. L. Rev. 921 (1992).
she acted solely out of fear of retaliation. Further, the fact
that Reed referred to “no water,” rather than to no bottled
or spring water, and to observed dehydration symptoms,
rather than a diagnosis of dehydration, did not render her
report fraudulent. “[I]t is well settled that the truth or
falsity of a communication is immaterial and is not the
test of its protected character.” Delta Health Center,
Inc., 310 NLRB 26, 36 (1993), enfd. mem. 5 F.3d 1494
(5th Cir. 1993), citing Professional Porter & Window
Cleaning Co., 263 NLRB 136, 139 fn. 12 (1982), enfd.
mem. 742 F.2d 1438 (2d Cir. 1983). Protection under the
Act is “not denied to an employee regardless of the inac-
curacy or lack of merit of the employee’s statements ab-
sent deliberate falsity or maliciousness.” CKS Tool &
Engineering, Inc. of Bad Axe, 332 NLRB 1578, 1586
(2000). Here, Reed and Gunnersen did not act with de-
liberate falsity or maliciousness, but out of concern for
the residents and out of fear of retaliation.
We also reject the Respondent’s argument that Reed
and Gunnersen’s conduct was disloyal under NLRB v.
Electrical Workers Local 1229 (Jefferson Standard), 346
U.S. 464 (1953). Reed’s statements to the hotline were
“true, and unlike the statements found unprotected in
Electrical Workers, supra, they were directly related to
protected concerted activities then in progress.” Commu-
nity Hospital of Roanoke Valley, Inc. v. NLRB, 538 F.2d
607, 610 (4th Cir. 1976). In any event, there was no at-
tempt in the instant case, as in Jefferson Standard, to
disparage the Respondent’s reputation in a public forum.
C. Conclusion
In sum, we agree with our colleagues that Reed and
Gunnersen acted concertedly out of concern for the nurs-
ing home residents. However, we disagree that this pre-
cludes a finding that they also acted out of concern for
their own working conditions. In this case, patient wel-
fare and working conditions are inextricably intertwined,
and the effort by Reed and Gunnersen to improve the
conditions of the residents was necessarily an effort to
improve their lot as employees. Accordingly, we would
find that Reed and Gunnersen were engaged in protected
concerted activity under Section 7 of the Act and that the
Respondent violated Section 8(a)(1) when it suspended
and discharged Reed and when it suspended Gunnersen
for calling the hotline about the excessive heat in the
nursing home.

Nicole Roberts, Esq., for the General Counsel.
Dennis M. Devaney, Esq., of Detroit, Michigan, for the Re-
spondent.
WATERS OF ORCHARD PARK 649
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Buffalo, New York, on November 12–13, 2002.1
The charge against the nursing home was filed July 12 and the
complaint was issued August 29.
This case involves the suspension of licensed practical nurse
Carol Gunnersen (serving as a charge nurse) and the suspension
and later discharge of certified nursing assistant (CNA) Kath-
leen Reed, for making a call on the confidential patient care
hotline to the New York State Department of Health on July 4
to report the excessive heat in unit 2 of the nursing home.
Charge Nurse Gunnersen, CNA Reed, and four other aides
were taking care of 40 elderly, mostly frail, patients in the facil-
ity’s 30-year-old original section (constructed in 1972), which
is not air-conditoned (Tr. 95, 140, 270).
Administrator Daniel Detor admitted at the trial (Tr. 167)
that “[y]es, the nursing home knew that the temperatures in unit
2 in the first week of July ‘placed patients at risk”’ (Tr. 161,
167).
New York State Regulation § 483.15(h)(6)—which Detor
also admitted (Tr. 138–139) is part of “the requirements that we
have to meet to be licensed as a nursing home in New York
State”—provides (R. Exh. 5):

(6) Comfortable and safe temperature levels. Facilities
initially certified after October 1, 1990 must maintain a
temperature range of 71–81º F; and

. . . .

Although there are no explicit temperature standards for fa-
cilities certified on or before October 1, 1990, these facilities
must maintain safe and comfortable temperature levels. [Em-
phasis added.]

Thus, the State of New York requires the nursing home to
maintain, for the patients, “safe and comfortable” temperature
levels for it to operate as a nursing home in the State. Admit-
tedly the temperatures in unit 2 were unsafe, “placing patients
at risk,” and of course the excessive heat was far from being
comfortable.
Gunnersen credibly gave undisputed testimony that the tem-
perature in unit 2 during the last 2 weeks in June was in the
high 80s and much hotter the first week of July (Tr. 66). The
temperature was monitored by maintenance engineers, who did
not testify (Tr. 75).
On July 1, in an unsuccessful effort to cope with the high
temperature in unit 2, the nursing home installed two free-
standing used 10,000 BTU air-conditioners from Spot Coolers.
One was installed next to the nurses station and the other one
was installed in the short hall leading from the nurses station—
but none in the long hall leading from there to the double doors,
separating the old section of the building from the new, air-
conditioned part of the building (Tr. 37–40, 67, 156–157, 159;
R. Exh. 10). Although the employees were instructed to keep
the outside windows and the doors down the short hall closed,

1 All dates are in 2002 unless otherwise indicated.
the air-conditoners were insufficient to keep unit 2 from getting
hotter that week (Tr. 12, 18, 47–48, 66, 225).
On July 1, after patient Adeeb Hussain was sent to the hospi-
tal, as Charge Nurse Gunnersen credibly testified, the hospital
nurse reported back to her that Hussain “was admitted for de-
hydration” (Tr. 91–96, 242–243, 249), although at the end of
the shift, Nursing Supervisor Cynthia Fields (who did not tes-
tify) told her to write on the nurses notes, “admitted . . . for
electrolyte imbalance” (Tr. 250–252; R. Exh. 17). (By Gun-
nersen’s demeanor on the stand, she impressed me most fa-
vorably as a candid, truthful witness, who has a good memory.)
On July 3, patient Ann Ruhland was also sent to the hospital
(Tr. 31–32; R. Exh. 13).
Regarding any difference in the care that management re-
quired that first week in July, CNA Reed credibly testified that
“We were all instructed to push extra fluids” to cope with the
heat, testifying that both Charge Nurse Gunnersen and Supervi-
sor Fields gave those instructions (Tr. 20–21).
CNA Heather Fite credibly testified that in this first week of
July she talked to Supervisor Fields about it being “very hot,”
that “the residents didn’t look good” and were dehydrated, and
that Fields told her “to just keep pushing fluids on the resi-
dents” (Tr. 105).
On July 4, it was “extremely hot” in unit 2 (Tr. 66, 268).
When CNA Reed arrived at 2 p.m., two additional patients,
Robert Magner and Pearl Peterson (R. Exh. 13), had been sent
to the hospital. As Reed credibly testified, she observed that
patients had a lack of appetite, were refusing to drink fluids,
were slouched in their chairs, and for the first time were taking
off their clothes, even in main corridors. “When asked to put
their clothing back on, they told me it was too hot.” (Tr. 13.)
When Charge Nurse Gunnersen arrived at 3 p.m. on July 4,
as she credibly testified, “a lot of the residents were overheated
and a lot of the windows were already beginning to be open”
(Tr. 67). “Patients were lethargic. I can recall one specific time
when I went to pass medication to a patient [who] was usually
awake. She was slumped in her chair. It took about two or three
times of prompting before I could even awake her, in order to
give her medication.” Some of the patients were “ripping their
clothing off.” (Tr. 69, 98–99.)
Gunnersen further credibly testified that a few residents went
out with family members and when they returned, for example
one in a wheelchair, they would ask, “Are you sure you’re go-
ing to be okay?” Because when they got off the elevator, “the
explosion of heat was there. And, it was a feeling like, I don’t
want to leave you. . . . It’s really hot here. Are you sure you’re
going to be okay? And, the resident did tell the family member
yes.” (Tr. 70–71.)
Gunnersen asked Supervisor Fields if she knew that the eld-
erly can dehydrate within 8 hours, and Fields said yes (Tr. 77).
Before installing the free-standing air-conditoners on July I,
the nursing home had taken the unprecedented action of fur-
nishing bottled spring water for the staff to carry around with
them to avoid being dehydrated themselves, but the bottled
water had run out and was no longer available on the afternoon
of July 4 (Tr. 75–76, 85, 156, 194–196). The water was locked
in Nursing Director Tracy Sullivan’s office during her holiday
absence that afternoon (Tr. 189, 223). The nursing home also

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
supplied popsicles for the staff and purchased cooling head-
bands for all the staff members (Tr. 195). None of these meas-
ures was a direct benefit to the patients.
Meanwhile, as Gunnersen further testified, “[A] lot of the
employees came to me [and] complained about the heat and . . .
said they couldn’t take” it, but “[t]hey are very dedicated em-
ployees and . . . everybody went back to work . . . for the pa-
tients” (Tr. 74).
Around 4:30 p.m., July 4, as Reed credibly testified, when
she, Gunnersen, and Supervisor Fields went outside on break,
Gunnersen told Fields to look “how sick I was” and that “I
should be sent home.” Fields refused, explaining that Sullivan
had ordered that no one could leave. (Tr. 21–22, 79.)
As an important part of the employees’ working conditions
in caring for the patients, the State requires the posting of the
patient care hotline notice. In unit 2, it is posted on the side of
the elevator, directly across from the nurses’ station. It requires,
for protection of the patients, that the employees report unsafe
conditions, as follows (Tr. 42; R. Exh. 1):

This notice must be posted in a location
accessible to patients, visitors and employees.

Important Notice

Patients and Visitors

. . . .

Employees and Licensed Health Professionals
You are required by New York State Public Health Law,
Section 2803-d, to report any instance of patient physical
abuse, mistreatment or neglect to the New York State
Department of Health. Call the Patient Care Hotline.
A copy of the law and applicable regulations are available
from this facility’s administrator. [Emphasis added.]

Patient Care Hotline
The Patient Care Hotline may be used 24 hours a day,
seven days a week, to report nursing home situations
requiring immediate action.

888-201-4563

Explaining her concern for the patients when she dialed the
State hotline number for Reed to report the conditions in unit 2,
Gunnersen credibly testified (Tr. 79–80):

A. Because we all felt like . . . the problem of over
heatedness after four days was not being solved. And, no-
body knew about it. And, when we started sending people
to the hospital and people were dehydrating, we didn’t
know where we were going from there. There was really
nobody around. It was the 4th of July. We were scared
[and wanted to call the State]. . . . Just because we cared
about the residents.

CNA Reed credibly testified that she had been told in train-
ing that the CNAs were the eyes and ears of the elderly pa-
tients, that they are to report “any and all conditions that you
feel may be hazardous,” that calls on the State hotline are con-
fidential, and that “you don’t have to identify yourself.” (Tr. 22,
28, 80, 235, 244, 270.)
As Reed credibly recalled at the trial, when she received the
phone from Gunnersen, she told the State that she was a rela-
tive of a resident [because of fear of retaliation], that it was
extremely hot in unit 2, there was no spring water available for
staff members, that several residents were dehydrated, that
several residents were taken out because of the extreme heat,
“and I felt it was a concern and I wanted them to come and look
into it” (Tr. 22–23, 268–269).
Gunnersen credibly testified that she was busy getting her
medication cart ready and did not overhear what Reed told the
State, except that when she returned to the nurses’ station at the
end of the call, she heard Reed say “And I am in concern for
the residents” (Tr. 80, 269). CNA Fite overheard Reed say only
that she was a family member of a resident and was calling
about the heat (Tr. 267). None of the other CNAs who were
present were called to testify.
The next morning, on Friday, July 5, Administrator Daniel
Detor received an urgent call on his cell phone from Assistant
Administrator Peter Fadeley. Detor was on vacation that whole
week and was then “up on Lake Ontario fishing” with his son.
As Detor admitted, “all [Fadeley] said [in this first call] was
that somebody had called the hotline.” (Tr. 133–134.)
Fadeley and Detor later “had phone calls back and forth” (Tr.
131). Detor recalled that (in one of the calls), Fadeley said that
CNA Judy Benzin (who did not testify) had tried to touch base
with him that Friday (July 5) but couldn’t and later called him,
giving him the (hearsay) information that Reed made the State
hotline call (Tr. 133).
Detor obviously feared that somebody had reported the heat
in the nursing home’s old section, which is not air-conditoned,
admittedly “plac[ing] patients at risk,” adversely affecting the
health of elderly and frail patients. This could be in violation of
the State regulation requiring “safe and comfortable” tempera-
ture levels and could adversely affect the State license to oper-
ate the nursing home.
Knowing that “[y]ou can’t really talk to the State [about who
made the hotline call and what was reported] because that’s
confidential [emphasis added],” Detor “asked [Fadeley] to in-
volve Tracy [Nursing Director Sullivan] and for them to inves-
tigate the accusations” (Tr. 134). Because of the urgency,
Fadeley immediately called Sullivan at home and had her come
in early to begin the investigation (Tr. 197–198).
That Friday afternoon, July 5, Reed was called to Sullivan’s
office and questioned about the State hotline call. For fear of
retaliation, Reed claimed she had no knowledge of the call. (Tr.
24.) Sullivan then phoned Gunnersen who, also for fear of re-
taliation, denied knowing anything about the hotline call (Tr.
81–82).
Later that Friday, Reed was called back to Sullivan’s office
to meet with her and Fadeley. Reed credibly expressed her
feeling about the meeting, stating that it was “very fearful,” that
they were “raising their voices, telling me that through two
reliable sources . . . I was the one that made the State phone
call” and asking, “Is this true or is this not true?” She began
crying and admitted, “Yes, it is.” (Tr. 231.)
Sullivan told Reed “to write down everything that I told the
State” (Tr. 25–26). Feeling that she could not refuse to give a
statement, Reed volunteered to do so, “[u]nder pressure,” feel-
WATERS OF ORCHARD PARK 651
ing “the pressure to write it to . . . try to save my job” (Tr. 25–
26, 237).
Reed credibly testified that in the meeting, Sullivan stated:
“Do you know the seriousness of these allegations? I can take
your CNA certification and Carol Gunnersen’s license for do-
ing this.” (Tr. 27.) When Sullivan was asked on cross-
examination about “Reed’s testimony yesterday” and “Did you
threaten her if she didn’t provide a statement?” Sullivan an-
swered no and testified that she asked Reed to voluntarily pro-
vide a statement (Tr. 202). Regarding Sullivan’s credibility, I
note that she later falsely denied that employees complained to
her about temperatures in unit 2, but after being shown her
pretrial affidavit, admitted that yes, staff members did complain
to her about the heat in the unit (Tr. 221–223).
Reed began writing the statement (R. Exh. 12), stating noth-
ing about what the nursing home was seeking, concerning what
Reed reported to the State about the condition of the patients in
unit 2 in the facility’s old section, which is not air-conditoned,
or about patients being sent to the hospital. Reed credibly testi-
fied that she was trying to make light of the statement to “pro-
tect my job.” (Tr. 234, 239–240.)
She wrote that there was “a lot of joking” about how hot unit
2 was (although clearly it was not a joking matter); that “we
couldn’t have any spring water” (which Sullivan already knew,
because the bottled spring water for the staff had been locked in
her office); that “[c]omplaints were said about the cookout
being just for [day-shift employees] and how mad everyone
was with that”; that unit 2 was “super hot” and “I didn’t feel
good at the time”; and that Gunnersen said “[W]e should call
the State about the heat” and dialed the phone and threw it at
her after deciding to use the company phone.
Reed showed what she had written in her statement to Sulli-
van, who threw the statement and the pen back toward her and
stated: “Elaborate on your statement” and “What about the
residents that went to the hospital with dehydration? . . . Write
that on there” (Tr. 26).
Reed added the following to her statement (R. Exh. 12),
making no mention of dehydration: “I stated that there was no
water on unit [referring to no spring water for the staff, men-
tioned earlier in her statement], very hot and several residents
were recently sent to hospital. I hung up and everyone was
laughing.” (Reed credibly testified that by stating the everyone
was laughing, she meant that she heard her coworkers saying,
“Ah-hah, wow, you’re in trouble for making that phone call”
(Tr. 234).
This expanded statement—which included confidential in-
formation sought by the nursing home concerning what Reed
reported to the State about how “very hot” it was (for the pa-
tients in the facility’s old section) and residents being sent to
the hospital—satisfied Sullivan and Fadeley (Tr. 26), both of
whom signed the statement below Reed’s signature (R. Exh.
12). Reed credibly testified that she signed the statement, think-
ing, “[I]f I signed it, possibly, I wouldn’t be retaliated against.”
Instead, Reed was suddenly suspended: “I was then asked to
leave the premises, pending further investigation of the State
hotline phone call”—without “any other reason” being given
for her suspension (Tr. 27). On July 11, after Administrator
Detor returned from vacation, he discharged her (Tr. 150).
Meanwhile on Saturday, July 6, Sullivan called Gunnersen,
said that Reed had admitted that she and Gunnersen had called
the State, and “I was therefore suspended” (Tr. 82, 243–244).
The nursing home has stated no reason for suddenly suspending
her, other than her dialing the hotline number for Reed to report
to the State.
The primary issues are whether the nursing home unlawfully
suspended Reed and Gunnersen and discharged Reed for en-
gaging in protected, concerted activity, to discourage employ-
ees from making hotline calls to the State to report unsafe con-
ditions for patients in the facility’s old section, which is not air-
conditoned, violating Section 8(a)(1) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the nursing home, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates its facility in Or-
chard Park, New York. It annually derives over $100,000 in
gross revenue and receives goods valued over $5000 directly
from outside the State. It admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Contentions of the Parties and Findings
1. Concerted activity
The General Counsel contends (Br. at 9) that “[t]he record
clearly establishes that Reed and Gunnersen were engaged in
concerted activity when they contacted the State.”
The nursing home contends in its brief (at 18) that
“[c]omplainants’ [CNA Reed’s and charge nurse Gunnersen’s]
Assertion of an Alleged Statutory Right” by making the hotline
call to the State, was not concerted. It cites, as “binding prece-
dent,” the Board’s decision in Meyers Industries, 281 NLRB
882 (1986), which held: “We merely find that invocation of
employee contract rights is a continuation of an ongoing proc-
ess of employee concerted activity, whereas employee invoca-
tion of statutory rights is not [emphasis added].” Even if other-
wise applicable, that decision refers (Id. at 887–888) to conduct
of a single employee, not two or more employees, as here.
I find that Reed’s and Gunnersen’s making the hotline call
was concerted activity.
2. Working conditions
The nursing home contends in its brief (at 16–18),
“[c]omplainants Did Not Complain About Section 7 Matters—
Working Conditions,” citing the employees’ nonlegal opinions
of what constitutes “working conditions” (Tr. 44, 84).
As found, the posted patient care hotline notice—informing
the employees that they are required by State law, for protec-
tion of the patients, to report an unsafe condition (“patient
physical abuse, mistreatment or neglect”)—is an important part
of the employees’ working conditions in caring for the patients.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
I find that the July 4 call to the State on the hotline, reporting
the heat in the facility’s old section, which is not air-
conditoned, admittedly “plac[ing] patients at risk,” did involve
a working condition.
3. Personal concern
The nursing home contends in its brief (at 20–21) that Reed
told Sullivan (Tr. 201) that she placed the hotline call to the
State for a purely personal reason, “that she was upset about
the cookout.” Contrary to Sullivan’s claim, Reed indicated in
her written statement on July 5 (R. Exh. 12), that she told the
State, as quoted above, “Complaints were said about the cook-
out being just for [day-shift employees] and how mad everyone
was with that.” Reed therefore was clearly referring to a group
complaint of the second-shift employees, not a personal com-
plaint.
In making this contention, the nursing home ignores Reed’s
undisputed testimony (Tr. 236) that she attended the picnic that
morning, in her off-duty hours. “I was there so I wouldn’t have
been upset about a picnic.”
Moreover, this and some of the other statements that Reed
made on July 4 in her written statement were not relevant to the
“report [of] patient abuse” which, as acknowledged in the nurs-
ing home’s brief (at 15), was “Complainants’ admitted purpose
in calling” the State on the hotline. The State was concerned
only about matters pertaining to patients’ unsafe conditions
covered by State regulations.
4. Protected activity
The General Counsel contends (Br. at 16) that the conduct of
Reed and Gunnersen, for which they were suspended, was pro-
tected activity.
The nursing home contends in its brief (at 22–31) that for
many purported reasons, both that the General Counsel failed to
prove that “[t]he Complainants [Reed and Gunnersen] Engaged
in Protected Activity” and that “[t]he Complainants Lost Pro-
tection Under the Act,” as follows:

The nursing home contends in its brief (at 22–24) that

(a) Both complainants made false representations to
the State on the hotline (although Gunnersen merely dialed
the hotline number and said nothing to the State).
(b) “Complainants lost their protection under the Act
. . . when they lied to management in its internal investiga-
tion of the incident.”

Both employees, however, did so in fear of retaliation when the
nursing home was investigating the confidential report on July
4 to the State. An important part of their working conditions in
caring for the patients, as found, was the requirement under
State law—as stated in the posted patient care hotline notice—
that employees report to the State any condition that is unsafe
for the patients. Admittedly, the heat “placed patients at risk” in
the facility’s old section, which is not air-conditoned.
Moreover, even if their attempt to conceal their participation
in making the confidential call was wrong, this was not given
as a reason for their sudden suspension after the nursing home
confirmed that both of them participated in the hotline call, in
which Reed informed the State of the unsafe condition of pa-
tients in the facility’s old section

(c) The complainants lost protection under the Act be-
cause their conduct was insubordinate and unlawful (with-
out explanation or applicable precedent).

The nursing home contends in its brief (at 24–26) that

(d) Both complainants, “through their own testimony,
concede that they lied to the State” (although Gunnersen
merely dialed the number and said nothing to the State).
(e) Reed told the State hotline operator that there was
“no water” at the nursing home.

This contention misstates Reed’s second reference to water
in her July 5 written statement, that there is “no water on unit
[emphasis added]”—not no water in the facility.
This was the second reference to water in Reed’s written
statement. As found, this reference to “no water” referred to
what Reed wrote earlier in her statement, that “we” could not
have any “spring water,” referring to the bottled spring water
locked during the afternoon that July 4th holiday in Nursing
Director Sullivan’s office.
Even if the call—on the nursing home’s company phone—
were considered to be from a relative of a resident, rather than
from a staff member, the statement that “we could not have any
spring water” would not be construed as no spring water for
visiting relatives and residents. Furnishing spring water even to
staff members was unprecedented.
The nursing home admits in its brief (at 11) that “the bottled
water was provided only for the employees:”

(f) Reed’s representation to the State that there was no
water “was undisputedly” a “fraudulent misrepresentation”
(although, to the contrary, her report of no spring water for
the staff was true).
(g) Reed admittedly lied to the hotline operator about
being a family member of one of the residents (although
this was not given as a reason for her suspension).

The nursing home contends in its brief (at 26–28):

(h) That Reed’s and Gunnersen’s telling management
that they had no knowledge of the State hotline call on
July 4 was a serious offense in the employee handbook,
subjecting an employee to immediate discharge (although
not only did the nursing home not discharge Reed imme-
diately, but this was not given as a reason for suspending
either Reed or Gunnersen).
(i) That complainants “deliberately violated legitimate
and important workplace rules regarding honesty in an in-
vestigation and in doing so, undermined the employer’s
authority” (although not given as a reason for their suspen-
sion).
(j) That complainants’ deceit to the State was “clearly
insubordination” (although Gunnersen merely dialed the
hotline number and said nothing to the State; there is no
explanation how Reed’s report to the State was insubordi-
nate or any applicable precedent; and this was not given as
a reason for suspending Reed and Gunnersen).
WATERS OF ORCHARD PARK 653
(k) That complainants’ “blatant and intentional” viola-
tion of the rule against providing false information in an
investigation undermines the nursing home’s authority (al-
though not given as a reason for their suspension).

The nursing home contends (at 28–29) that

(l) The company hotline was the proper channel for
employees to follow for complaints about working condi-
tions—not calling the State hotline (although, as found,
employees are “required” by State law to report such un-
safe conditions for patients—making this requirement an
important part of the employees’ working conditions in
caring for the patients).
(m) The complainants’ failure to follow the facility’s
established departmental procedures was a specific offense
in the employee handbook and “unnecessarily wasted the
State’s and the company’ time and money” (although not
given as a reason for their suspension).

The nursing home contends in its brief (29–31)

(n) That the complainants’ motivation for placing the
State hotline call was disloyal (without explanation or any
applicable precedent).
(o) That “the weight of the evidence . . . establishes
that the State hotline call was made to retaliate against the
Company for failing to provide a picnic to the second shift
staff” (completely ignoring all the evidence about the ex-
cessive heat).
(p) That the “Complainants’ argument that they were
concerned about the effects of the heat on the patients’
health is simply incredible” (ignoring Administrator De-
tor’s admission at the trial that the temperatures in unit 2
“placed patients at risk”).
(q) The fact that the building “was not equipped with
air-conditoning throughout did not cause the facility to
violate any code or regulation,” because the 30-year old
section of the building was “grandfathered in under the
applicable code” (ignoring § 483.15(h)(6) of the State
regulation that facilities certified before October 1, 1990
“must maintain safe and comfortable temperature levels”).
(r) That the State visited the site and investigated the
complaint (on July 8, 4 days after the “extreme” heat on
July 4), finding (on August 14, R. Exh. 7) “no violations
of State or Federal regulations,” and that the Board “owes
deference to the findings of the New York Department of
Health.”

The Board, however, clearly has the sole responsibility to de-
termine if the nursing home unlawfully suspended Reed and
Gunnersen and discharged Reed to discourage employees from
making hotline calls to the State to report unsafe conditions for
patients in the facility’s old section, which is not air-
conditoned, in violation violated Section 8(a)(1) of the Act.

(s) That complainants’ testimony that their motivation
for making the hotline call was their legitimate concern for
the safety of the residents, is “simply incredible,” because
the patients had plenty of water (although the evidence is
clear that neither complainant claimed that the patients did
not have plenty of water, and the evidence abundantly
shows that they called the State because of the heat, which
admittedly “placed patients at risk.”

In addition to these 19 purported reasons for contending that
the conduct of Reed and Gunnersen was not protected activity,
the nursing home emphasizes in its brief (at 10–12, 25–26, and
30–31) a contention that Reed’s hotline call was not a protected
activity because she lied to the State that several residents were
sent to the hospital for or due to dehydration.
To the contrary, Reed did not lie to the State that several
residents were sent to the hospital because of dehydration.
The evidence shows that Reed carefully avoided telling the
State that residents were sent to the hospital with a diagnosis of
dehydration. Both she and Gunnersen, as the nursing home
points out in its brief (at 12), “admitted that they were not
qualified to diagnose dehydration”—certified nursing assistant
Reed testifying, “I’m not a medical nurse,” and licensed practi-
cal nurse testifying, “I’m not a doctor, so I can’t diagnose it”
(Tr. 30, 72).
Instead, as Reed credibly testified, she told the State on the
hotline call that “several residents were taken out because of
the extreme heat.” (Tr. 22–23, 268–269.)
This was a truthful report of what she was observing. Both
she and Gunnersen credibly testified about the “extreme” heat
on July 4 (Tr. 66, 268). Administrator Detor admitted at the
trial that the temperatures that week in unit 2 where they
worked “placed patients at risk”—referring to the mostly frail
patients with many ailments that could be aggravated by the
heat. Detor was on vacation that first week of July, but the evi-
dence is undisputed that maintenance engineers (who did not
testify) monitored the temperature.
As found, one patient (Adeeb Hussain) was sent to the hospi-
tal that Monday, July 1, and another patient (Ann Ruhland) was
sent that Wednesday, July 3 (R. Exh. 13). On July 4 when Reed
arrived at 2 p.m., two additional patients, Robert Magner and
Pearl Peterson (R. Exh. 13), had been sent to the hospital. Reed
observed, as found, that patients had a lack of appetite, were
refusing to drink fluids, were slouched in their chairs, and for
the first time were taking off their clothes, even in main corri-
dors. “When asked to put their clothing back on, they told me it
was too hot.” (Tr. 13.)
When Nursing Director Sullivan on July 5 returned to Reed
her written statement about what she told the State in her July 4
hotline call and instructed her to elaborate on it, stating “What
about the residents that went to the hospital with dehydration?
. . . Write that on there,” Reed wrote “very hot and several resi-
dents were recently sent to hospital”—not stating that they were
sent because they were dehydrated (Tr. 26; R. Exh. 12).
In Reed’s pretrial affidavit (Tr. 34–35), she stated that “pa-
tients were sent out for dehydration”—not that she told the
State that. She explained that she “perceived it as dehydration”
because “I do know some of the signs and symptoms of it” and
because “I feel I was trained in my CNA Pathways Class that I
took on how to define dehydration.”
The nursing home did not call as a witness Nursing Secretary
Fields or any of the other staff member who was present in unit
2 on July 4.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
B. Concluding Findings
The complaint alleges that the nursing home violated Section
8(a)(1) by suspending and/or terminating Kathleen Reed and
suspending Carol Gunnersen “to discourage employees” from
“contacting the New York State Department of Health” con-
cerning “employees’ working conditions.”
As found, an important part of the employees’ working con-
ditions—in caring for the 40 elderly, mostly frail, patients in
unit 2 of the nursing home’s 30-year-old section, which is not
air-conditoned—is the predominately displayed State notice. It
informs the employees that they are “required” by State law, for
protection of the patients, to report any unsafe condition (“pa-
tient physical abuse, mistreatment or neglect”) to the New York
State Department of Health by calling the Patient Care Hotline
at 888–201–4563.
Administrator Detor admitted at the trial that the heat in the
old section of the facility created an unsafe condition for the
patients, by testifying that the temperatures in unit 2 “placed
patients at risk.”
As found, the nursing home suddenly suspended Reed and
Gunnersen upon confirming how “super hot” it was on July 4,
when Gunnersen dialed the hotline number and Reed reported
in the call to the State the excessive heat in the facility’s old
section, creating an unsafe condition for the patients, several of
whom were recently sent to the hospital. At the time, the nurs-
ing home gave no other reason for suspending them.
The evidence clearly shows that the nursing home suspended
Reed and Gunnersen to discourage employees in unit 2 from
reporting any unsafe condition for patients in the facility’s old
section, which is not air-conditoned.
As found, in the meeting when Reed was called to Nursing
Director Sullivan’s office on July 5 and told that two reliable
sources said she had made the State hotline call on July 4, Sul-
livan stated: “Do you know the seriousness of these allega-
tions? I can take your CNA certification and Carol Gunnersen’s
license for doing this.” Undoubtedly, this statement was in-
tended to discourage employees from making hotline calls to
the State.
The nursing home’s reaction when it first heard on July 5
that “somebody had called the hotline” on July 4, clearly re-
veals its concern about employees making hotline calls to the
State.
Assistant Administrator Fadeley immediately made an ur-
gent call, by cell phone, to Administrator Detor, who was on
vacation, fishing at a lake with his son. Detor asked Fadeley to
involve Sullivan and for them “to investigate the accusations.”
Because of the urgency, Fadeley immediately called Sullivan at
her home and had her come in early to begin the investigation.
When they confirmed that Gunnersen and Reed had made the
hotline call, the two employees were suddenly suspended.
The officials obviously feared that employees using the State
hotline to report the excessive heat in unit 2, in violation of the
State regulation requiring “save and comfortable” temperature
levels, could adversely affect the State license to operate the
nursing home.
In view of these findings, I find that the many contentions
made by the nursing home in its brief are mere afterthoughts.
The contentions ignore the controlling issue whether the nurs-
ing home suspended and discharged Reed and suspending
Gunnersen “to discourage employees” from making hotline
calls to the State about any unsafe condition for patients.
I therefore find that the nursing home suspended Reed and
Gunnersen and discharged Reed for engaging in protected,
concerted activity, to discourage employees from making hot-
line calls to the State to report any unsafe condition for patients
in the facility’s old section, which is not air-conditoned, violat-
ing Section 8(a)(1) of the Act.
CONCLUSION OF LAW
By suspending CNA Reed and Charge Nurse Gunnersen and
discharging Reed for engaging in protected concerted activity,
to discourage employees from making patient care hotline calls
to the New York State Department of Health to report unsafe
conditions for patients in its facility’s old section, which is not
air-conditoned, Respondent nursing home violated Section
8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily suspended two em-
ployees and discharged one of them, it must offer reinstatement
to the discharged employee and make both of the suspended
employees whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]