Health Care Corp.

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 63 (N.L.R.B. 1992)

63
306 NLRB No. 11
HEALTH CARE CORP.
1 The judge found, and we agree, that the Respondent’s staff
nurses are employees within the meaning of the Act. In his analysis,
the judge relied on Ohio Masonic Home, 295 NLRB 390, 393 fn.
7 (1989), for the proposition that the General Counsel has the burden
of proving that the nurses are employees, and not supervisors. We
disagree. The party alleging supervisory status, in this case, the Re-
spondent, bears the burden of proving an individual is a supervisor.
St. Alphonsus Hospital, 261 NLRB 620, 624 (1982). See also Com-
mercial Movers, 240 NLRB 288 (1979). We find that the Respond-
ent failed to meet this burden.
We disagree with the Respondent’s argument that the Sixth Cir-
cuit’s ruling in NLRB v. Beacon Light Christian Nursing Home, 825
F.2d 1076 (1987), requires a different result. In that case, the court
held that ‘‘[t]he Board always has the burden of coming forward
with evidence showing that employees are not supervisors in bar-
gaining unit determinations.’’ Beacon Light, at 1080. The Board has
not acquiesced on this point. See Ohio Masonic Home, supra. In any
event, we find that the preponderance of the evidence establishes
that the nurses are employees.
Member Oviatt agrees with his colleagues that under the facts of
this case the nurses are employees. But see his dissent in Riverchase
Health Care Center, 304 NLRB 861 (1991).
2 Another nurse, Connie Thatcher, who did not participate in the
Toledo meeting, was also disciplined.
Health Care & Retirement Corp. of America and
Ruby A. Wells. Case 9–CA–26348
January 21, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 22, 1990, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed cross-exceptions with a
supporting brief, and an answering brief in opposition
to the General Counsel’s exceptions.
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
Background
The facts, as more fully set forth by the judge, may
be summarized as follows. The Respondent operates a
nursing home in Urbana, Ohio, where it employed the
alleged discriminatees, Julia Goldsberry, Cynthia
Cordrey, and Ruby Wells, as licensed practical nurses
(LPNs).1
During the latter part of 1988 and early January
1989, there were perceived to be problems at the facil-
ity, many of which became topics of conversation
among the employees. These included what some em-
ployees thought were the Respondent’s disparate en-
forcement of its absentee policy, short staffing, low
wages for nurses aides, the Respondent’s unreasonably
switching its prescription business from one pharmacy
to another, which increased the nurses’ paperwork, and
management’s failure to communicate with employees.
On January 10, 1989, nurses Goldsberry, Cordrey,
and Wells asked to meet with Brenda Stabile, the Re-
spondent’s administrator, to discuss these problems.
Stabile stated that she was too busy to meet with them
and that they should make an appointment for later in
the week. The nurses discussed what action they
should take and decided to speak with an official at the
Respondent’s headquarters in Toledo.
The next day the nurses drove to Toledo and met for
about an hour with Jim Millspaugh, the Respondent’s
director of human resources, and Bob Possanza, the
Respondent’s vice president for operations. They
voiced the complaints and concerns of the nursing
staff. Millspaugh agreed to investigate and to report
back to them. Possanza assured the nurses that they
would not be harassed for bringing their concerns to
headquarters’ attention.
Millspaugh notified both the Respondent’s regional
manager, Dee Nevergall, and Stabile of the visit and
about the matters raised by the nurses. Millspaugh then
launched his own investigation which culminated in
the Respondent’s hiring more aides, increasing the
wages for the aides, and disciplining and subsequently
terminating Goldsberry, Cordrey, and Wells.2
The judge found that the General Counsel failed to
prove that the nurses were unlawfully terminated or,
except for one instance, disciplined for engaging in
protected concerted activity. He credited Millspaugh’s
testimony that on March 2, at his final meeting with
employees at the facility, the three nurses conveyed an
attitude of ‘‘resistance to change . . . to . . . make
Heartland of Urbana a good facility.’’ According to
Millspaugh, this ‘‘attitude’’ or ‘‘demeanor’’ was re-
flected in the three nurses crossing their arms and roll-
ing eyes in response to comments made by
Millspaugh. The judge concluded, however, that the
nurses’ nonverbal body movement was not protected
by the Act because there was ‘‘no indication that the
nurses intended that their body postures and facial ex-
pressions be seen by Millspaugh as communication.’’
The judge found further that there were too many
‘‘links in the casual chain’’ to conclude that the nurses
were terminated for having complained to higher man-
agement in Toledo. The General Counsel excepts. For
the reasons set forth below, we agree with the General
Counsel.
The Discharges
Millspaugh visited the Urbana facility on three dif-
ferent occasions in response to the three nurses’ con-
cerns. On January 16, 1989, he met with the depart-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Wright Line was approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
4 We reject the Respondent’s argument that the discriminatees’ ac-
tivities lost the protection of the Act because their ‘‘carping’’ was
not directed towards improving the lot of employees. First, we find
that one trip to management headquarters to discuss legitimate em-
ployee concerns does not establish a pattern of constant criticisms
and attacks on management as alleged by the Respondent. Second,
we fail to see how discussing employee wages, enforcement of ab-
sentee policies, short staffing, and poor communication between
management and employees could be construed as anything other
than an attempt to improve employee working conditions.
5 See Bronco Wine Co., 256 NLRB 53 (1981).
6 Millspaugh testified that as a result of his investigation, he deter-
mined that Goldsberry, Cordrey, and Wells were the employees
mainly responsible for the tension and unrest at the facility. He also
testified that he was told that each of the three nurses spoke with
residents and family members about problems at the facility. The
Respondent, however, offered no evidence in support of these allega-
tions. It is undisputed that no member of management ever contacted
any resident or family member nor were any of the discriminatees
ment heads. At this meeting he asked each person to
name anyone associated with the tension and unrest in
the facility. He explained that he had recently become
aware of this situation through his talks with Stabile
and Regional Manager Nevergall. Cordrey’s and
Wells’ names appeared on every slip and Goldberry’s
name appeared on many. A few other employees were
named, but not as often as any of those three.
Two days later, Millspaugh met with the employees
in each department. He listened to their complaints and
concerns. Millspaugh determined that the concerns
raised by the three nurses were shared by many others,
and that some of their complaints were valid.
Millspaugh cautioned, however, that the employees
were supposed to support decisions made by manage-
ment, and he felt that all the nurses agreed with him
on this point.
On March 2, Millspaugh traveled to the Urbana fa-
cility for the final time to meet with all the nurses to
inform them of the results of his investigation. He met
privately with Goldsberry, Cordrey, and Wells before
the general meeting to tell them of his decisions. Dur-
ing the meeting with all the nurses, Millspaugh testi-
fied that there was some ‘‘heated conversation’’ among
the nurses about the appropriateness of the policies at
the facility and about how things should be done.
Millspaugh testified that he observed ‘‘resistive behav-
ior’’ on the part of Goldsberry, Cordrey, and Wells to
his comments. In particular, he observed that they
rolled their eyes and sat with their arms crossed. Ac-
cording to Millspaugh, the three nurses thereby dem-
onstrated that they were unwilling to change their
mode of operation, attitude, or cooperation for the
good of the facility. Based on his observations and
perceptions of the three nurses at the meeting,
Millspaugh made the decision to terminate them. He
consulted with Regional Manager Nevergall and two
others who agreed with him that the discharges were
appropriate. On March 14, Stabile told Cordrey and
Wells that they either had to resign or they would be
fired. Both refused to resign and they were fired. On
March 16, Goldsberry was given the same option.
Goldsberry resigned. All three were told that the Re-
spondent’s resign-or-be-fired ultimatum was because of
their ‘‘attitude’’ and their opinion of management.
Conclusions on Discharges
In Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982),3 the Board set forth its causation test for cases
alleging violations of the Act that turn on employer
motivation. The General Counsel must make a prima
facie showing sufficient to support the inference that
protected conduct was a ‘‘motivating factor’’ in the
employer’s decision. The burden then shifts to the em-
ployer to demonstrate that the same action would have
taken place notwithstanding the protected conduct. In
rebutting the General Counsel’s case, the employer
cannot simply present a legitimate reason for its action,
but must also persuade by a preponderance of the evi-
dence that the same action would have taken place
even in the absence of the protected conduct. Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984). Apply-
ing these principles to the facts of this case, we find
that the discharges of Goldsberry, Cordrey, and Wells
violated the Act.
We find that Goldsberry, Cordrey, and Wells en-
gaged in protected activity by traveling to Toledo to
speak with members of management about workplace
matters of concern to the employees and that they con-
tinued to engage in protected conduct up to and includ-
ing the meeting on March 2.4 An inference that their
protected conduct was a motivating factor in
Millspaugh’s decision to discharge them is plain from
his testimony. The judge credited Millspaugh’s testi-
mony that he made the decision to terminate
Goldsberry, Cordrey, and Wells after observing their
‘‘attitude’’ and/or ‘‘demeanor’’ at the March 2 meet-
ing. Their ‘‘demeanor’’ indicated to Millspaugh that
they were resistant to change and to getting ‘‘on
board’’ to make the Respondent a good facility.
Millspaugh’s meeting with the nurses on March 2 to
announce the results of his investigation, at which he
observed the three discriminatees’ demeanor, would
not have occurred had the discriminatees not traveled
to Toledo to discuss their concerns with management.5
Further, their ‘‘body language’’ reaction to
Millspaugh’s statements at the March 2 meeting plain-
ly evidenced their dissatisfaction with the extent to
which Millspaugh was willing to remedy their per-
ceived inadequacies in working conditions. Although
Millspaugh did not testify that the nurses’ demeanor
was the sole reason for their discharges,6 the Respond-
65HEALTH CARE CORP.
asked to confirm or deny these allegations. We find no evidence in
the record to support them.
7 The Respondent offered no evidence to show that any other em-
ployee had ever been discharged for ‘‘resistance’’ to policy changes.
8 Millspaugh’s references to the employees’ ‘‘demeanor’’ and ‘‘re-
sistance to change’’ indicate that he believed that Goldsberry,
Cordrey, and Wells would continue to engage in the same type of
activity as they had been. These activities included discussing and
bringing to the attention of management workplace matters of legiti-
mate concern to the employees. These activities are protected under
the Act. We find, therefore, that Millspaugh’s stated reasons for dis-
charging the discriminatees support finding a violation of Sec.
8(a)(1).
Similarly, the judge suggests that the Respondent, in deciding to
discharge the three nurses, could lawfully rely on Cordrey’s state-
ments to Millspaugh on March 2 both before and after the main
meeting because they were not protected by the Act. As noted,
Millspaugh met privately with the three nurses to inform them of his
decisions. Those decisions were not, in the view of the nurses, suffi-
ciently responsive to the problems at the nursing home. In the
premeeting, Cordrey responded to Millspaugh’s statement that he felt
Stabile now knew that she had to cooperate with the nurses to make
the facility run effectively. Cordrey told Millspaugh that his efforts
‘‘hadn’t helped.’’ In response to Millspaugh’s request for her to be-
come ‘‘part of the solution,’’ Cordrey commented to Millspaugh
after she left the meeting that she (Cordrey) was ‘‘not part of the
problem.’’ Contrary to the judge, we find that Cordrey’s remarks
were protected and demonstrated that Cordrey intended to continue
to work for changes at the nursing home. Further, Cordrey’s remarks
offer no basis for discharging Wells and Goldsberry—unless the Re-
spondent’s intention was to end all protected activity.
9 In Consumers Power Co., 282 NLRB 130, 132 (1986), the Board
stated:
. . . when an employee is discharged for conduct that is part of
the res gestae of protected concerted activities, the relevant
question is whether the conduct is so egregious as to take it out-
side the protection of the Act, or of such a character as to render
the employee unfit for further service.
See also Hawaiian Hauling Service, 219 NLRB 765 (1975).
10 See, for example, Chrysler Corp., 249 NLRB 1102 (1980).
11 See Crown Central Petroleum Corp., 177 NLRB 322 (1969),
enfd. 430 F.2d 724 (5th Cir. 1970); Thor Power Tool Co., 148
NLRB 1379, 1380 (1964), enfd. 351 F.2d 584 (7th Cir. 1965); Post-
al Service, 241 NLRB 389 (1979); Burle Industries, 300 NLRB 498,
503–505 (1990); Marion Steel Co., 278 NLRB 897 (1986). See also
Severance Tool Industries, 301 NLRB 1166 (1991).
12 Surely the employees’ ‘‘body language’’ included none of the
vulgarity or rudeness like that permitted in the cases cited above.
ent does not dispute the judge’s finding that their de-
meanor at the March 2 meeting, which we have found
to be protected concerted activity, was a factor in the
decision to discharge them. Accordingly, we find that
the General Counsel has presented a prima facie case
to support the allegation that the nurses’ discharges
violated Section 8(a)(1).
We further find that the Respondent has failed to
demonstrate that it would have taken the same action
against Goldsberry, Cordrey, and Wells in the absence
of their protected activity. Although Millspaugh testi-
fied that he took into consideration other factors, he
was emphatic that the main reason for the nurses’ dis-
charge was their resistance to policy changes.7 The
record, however, is barren of any testimony or evi-
dence indicating any instance where any of the three
discriminatees defied an order or failed to cooperate
with a management decision. What remains is a deci-
sion to discharge employees because of their protected
activity, without any evidence that the Respondent
would have taken the same action in the absence of the
protected activity.8
The Board has long held that in the context of pro-
tected concerted activity by employees, a certain de-
gree of leeway is allowed in terms of the manner in
which they conduct themselves.9 The Board and courts
have found, nonetheless, that an employee’s flagrant,
opprobrious conduct, even though occurring during the
course of Section 7 activity, may sometimes lose the
protection of the Act and justify disciplinary action on
the part of an employer.10 Not every impropriety, how-
ever, places the employee beyond the protection of the
Act. For example, the Board and the courts have found
foul language or epithets directed to a member of man-
agement insufficient to require forfeiting employee
protection under Section 7.11
We find that the conduct engaged in by Goldsberry,
Cordrey, and Wells (i.e., their ‘‘demeanor’’), and for
which they were allegedly discharged, was mild if not
innocuous.12 Thus, the employees’ protected activities
did not lose the protection of the Act. Under these cir-
cumstances, we find that Julia Goldsberry, Cynthia
Cordrey, and Ruby Wells were discharged in violation
of Section 8(a)(1) of the Act.
The Disciplinary Warnings
On February 27, 1989, Cordrey received three writ-
ten warnings and Wells received four. Nurse Connie
Thatcher received two written warnings on February
23 and another four on March 10.
A. Warnings About Improper Documentation
Nurses Cordrey and Thatcher received a notice of
‘‘verbal warning’’ for mistakes made in their January
1989 treatment records and Wells received a more seri-
ous ‘‘written warning’’ for the same offense. All the
warnings were dated February 15.
The Respondent previously had employed a patient-
assessment nurse who had corrected errors in the
nurses’ treatment records. None was employed, how-
ever, during the latter part of 1988. On February 1,
1989, the Respondent was notified by the State of
Ohio that its records for the months of November, De-
cember, and January were to be audited the next day.
Members of management attempted to review the
records and make the necessary corrections. They cor-
rected the A wing records but did not have time to
correct the B wing records. They found numerous er-
rors committed by many nurses in the A wing, but
only nurses Cordrey, Thatcher, and Wells were dis-
ciplined.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The judge found that the discipline of Cordrey and Wells for
missing the February 16 ‘‘inservice’’ violated Sec. 8(a)(1). He did
not find, however, that the discipline was in response to the nurses’
protected concerted activities in conjunction with their trip to To-
ledo, but rather that it was based on management’s belief that the
nurses were protesting certain management policies. For the reasons
set forth in our decision, we find the discipline violated Sec. 8(a)(1)
but not for the reasons stated by the judge.
14 Thatcher, admittedly, was not one of the ‘‘Toledo travellers.’’
She was, however, a ‘‘good friend’’ of the three according to Sta-
bile. Stabile also testified she associated Goldsberry, Cordrey, Wells,
and Thatcher together as the leaders of the complaining group and
that she considered all four nurses to be resistant to management
policies.
15 Cordrey had worked for the Respondent for almost 5 years and
Wells had worked there for over 2-1/2 years.
16 We note that Goldsberry was not disciplined. The Respondent,
however, attempted to justify her discharge on the same grounds as
Wells’ and Cordrey’s.
17 One nurse scheduled for the inservice called in sick and another
missed the inservice to take her son to the dentist, and neither was
disciplined.
B. Discipline of Cordrey and Wells for Missing
an ‘‘Inservice’’
Periodically, the Respondent conducts training serv-
ices for its nurses called ‘‘inservices.’’ For some
inservices, attendance is mandatory. On February 16,
the Respondent conducted a mandatory inservice on
documentation. Although many nurses missed the
meeting, only Cordrey and Wells received written dis-
ciplinary notices for doing so.
C. Discipline of Thatcher Regarding Assignment
of Aides
On March 9, the Respondent’s director of nursing
instituted a new system for the assignment of aides.
Thatcher had some difficulty that night in following
the new instructions, leading to some problems among
her aides the next day. On March 10, Thatcher was
disciplined for not following instructions.
D. Discipline of Cordrey, Wells, and Thatcher for
Excessive Absences and Wells’ Discipline for an
‘‘Unexcused Absence’’
The Respondent maintained a policy that two ab-
sences in 1 month or six absences in 1 year are exces-
sive and will result in progressive discipline. The pol-
icy had been routinely ignored, but sometime in late
1988 or early 1989, the policy was reimposed.
To arrive at the number of absences necessary to
discipline Cordrey, management included an absence
for funeral leave, a specified employee benefit. Wells
was issued two warnings, both of which included the
same absence. Wells had volunteered to work on Fri-
day, February 3, which was not her regular workday,
provided Administrator Stabile informed her in ad-
vance who her replacement was. Stabile did not do so,
nor did the February schedule contain Wells’ name for
that Friday. Wells left Stabile a note that morning con-
firming that she assumed she was not to work because
she had not heard back from Stabile and her name was
not on the schedule. Stabile proceeded to brand Wells
a ‘‘no call/no show’’ and disciplined her for an unex-
cused absence as well as for two occurrences in a
month.
Conclusions on Discipline
The judge concluded that none of the disciplinary
actions were taken as a result of the nurses’ protected
concerted activity in connection with their traveling to
Toledo.13 We disagree.
We find that the General Counsel made a prima
facie showing sufficient to support the inference that
protected conduct was a ‘‘motivating factor’’ in the
Respondent’s decision to discipline Cordrey, Wells,
and Thatcher. Each of the disciplinary actions occurred
shortly after Goldsberry, Cordrey, and Wells went to
Toledo and in the middle of Millspaugh’s resultant in-
vestigation of their complaints and concerns.14 Thus,
after the employees engaged in protected concerted ac-
tivity, the Respondent began a course of disciplinary
action against them. Stabile testified that prior to Feb-
ruary 27, neither Cordrey nor Wells had ever been
written up, reprimanded, or otherwise disciplined.15 In
fact, on a loan form submitted by Wells to the Re-
spondent dated December 15, 1988, the Respondent
marked her probability of continued employment as
‘‘excellent.’’
The Respondent’s motive is fully revealed by the
disparate way in which the warnings were given out.16
For example, the writeups for the documentation errors
were dated February 13, but the nurses were not noti-
fied until the February 16 inservice that such errors
would result in discipline. Further, Stabile admitted
that, during the course of management’s examination
of the treatment records, she noticed that many nurses
had made a high number of errors, but that only
Cordrey, Wells, and Thatcher were disciplined. Stabile
testified that the reason they were singled out was be-
cause they had attended a previous inservice on docu-
mentation. We find this argument unpersuasive in light
of the fact that at least one other nurse had attended
the earlier inservice, made errors in February, and was
not disciplined. Also, the nurses had previously relied
on a patient-assessment nurse to either point out their
errors or to correct them, and no one had been pre-
viously reprimanded for treatment-records errors.
The Respondent offered no justification for issuing
written disciplinary notices to Cordrey and Wells for
missing the February 16 inservice. Other nurses did
not attend, but they were not disciplined.17 Further, the
Respondent did not follow its own policy of giving 2
weeks’ notice for a mandatory inservice. Cordrey was
67HEALTH CARE CORP.
18 Cordrey learned about the inservice from another nurse before
February 16.
19 The issuance of warnings pursuant to a policy of stricter en-
forcement instituted in response to protected activity violates Sec.
8(a)(1). See Dynamics Corp. of America, 286 NLRB 920, 921
(1987).
20 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.’’
not on duty at any time between the announcement and
the inservice itself, and both Cordrey and Wells had
advised management in advance of the inservice that
they could not attend because both had sick children.18
Finally, we find it more than purely coincidental that
the Respondent’s absenteeism policy, which previously
had been either loosely enforced or not enforced at all,
was suddenly strictly enforced to the detriment of
Thatcher, Wells, and Cordrey. This occurred shortly
after Wells and Cordrey had traveled to Toledo and
after many of the nurses, including Thatcher, had dis-
cussed problems at the facility among themselves. The
Respondent went to great lengths to find that Cordrey
and Wells violated its absenteeism policy, charging
Cordrey with an absence for funeral leave, which em-
ployees are permitted to take as a benefit, and charging
Wells with an absence on a day she was not scheduled
to work. We find that the Respondent more strictly en-
forced its attendance policy against the discriminatees
in response to their protected activities.19
We find that the Respondent has offered no credible
explanation to justify its disciplinary action against
Cordrey, Wells, or Thatcher. We therefore find that the
Respondent did not meet its burden under Wright Line
of establishing that it would have taken the same ac-
tion regardless of the nurses’ protected concerted activ-
ity. We therefore find that each warning violated Sec-
tion 8(a)(1).
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order the Re-
spondent to cease and desist and to take certain affirm-
ative actions designed to effectuate the policies of the
Act.
We shall also order the Respondent to offer Julia
Goldsberry, Cynthia Cordrey, and Ruby Wells imme-
diate and 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 previously enjoyed and to
make them whole for any loss of earnings and other
benefits suffered because of the discrimination against
them, less any net interim earnings, to be computed in
the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Health Care & Retirement Corp. of Amer-
ica, Urbana, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they have engaged in protected
concerted activities.
(b) Issuing disciplinary notices and warnings to em-
ployees because they have engaged in protected con-
certed activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Julia Goldsberry, Cynthia Cordrey, and
Ruby Wells immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(b) Remove from its files any reference to the dis-
charge of Cynthia Cordrey and Ruby Wells and the
resignation of Julia Goldsberry and notify them in
writing that this has been done and that evidence of
the discharges or resignation will not be used as a
basis for any future personnel actions against them.
(c) Remove from its files any reference to the un-
lawful disciplinary actions taken against Cynthia
Cordrey, Ruby Wells, and Connie Thatcher and notify
them in writing that that this has been done that evi-
dence of the disciplinary actions will not be used as
a basis for any future personnel actions against them.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its facility copies of the attached notice
in Urbana, Ohio, marked ‘‘Appendix.’’20 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party was represented at the hearing by Pattrick
Dunphy, Esq., of Dayton, Ohio. But he later requested permission
to withdraw as counsel, and I granted the request.
2 NHCR admits that it is an employer engaged in commerce.
3 NHCR calls many of its facilities ‘‘Heartland,’’ as in Heartland
of Lansing, Heartland of Beaver Creek, and so on. But none of
HCR’s other ‘‘Heartlands’’ are pertinent to the discussion here.
4 For simplicity’s sake I use the present tense in discussing the
nurses’ authority and responsibilities. But the record suggests that
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in protected concerted activi-
ties.
WE WILL NOT issue disciplinary notices and warn-
ings to any of you because you have engaged in pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercises of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Julia Goldsberry, Cynthia Cordrey,
and Ruby Wells immediate and 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 or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
the discharges or resignation, less any net interim earn-
ings, plus interest.
WE WILL notify each of them that we have removed
from our files any reference to the discharges or res-
ignation and that the discharges and/or resignation will
not be used against them in any way.
WE WILL remove from the files of Cynthia Cordrey,
Ruby Wells, and Connie Thatcher any reference to the
disciplinary notices and warnings issued to them and
WE WILL notify them in writing that this has been done
and that the disciplinary actions will not be used
against them in any way.
HEALTH CARE & RETIREMENT CORP. OF
AMERICA
Engrid Emerson Vaughan, Esq., for the General Counsel.
R. Jeffrey Bixler, Esq. (Cooper, Straub, Walinski & Cramer),
of Toledo, Ohio, for the Respondent.1
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, Health Care and Retirement Corporation of Amer-
ica (HCR), owns and operates about 140 facilities in 27
states.2 All but two are nursing homes. The only HCR facil-
ity we are concerned with here is a nursing home in Urbana,
Ohio. HCR calls it ‘‘Heartland of Urbana’’ (Heartland).3
Heartland’s employees are not represented by a union.
The General Counsel alleges that HCR disciplined several
Heartland nurses, and fired three of them, because the nurses
engaged in protected activities, thereby violating Section
8(a)(1) of the National Labor Relations Act (the Act). HCR
claims that it acted against the nurses for entirely appro-
priate, lawful, reasons. HCR also claims that Heartland’s
nurses are supervisors within the meaning of the Act, not
employees. And as the General Counsel agrees, if the nurses
are supervisors, then HCR did not violate the Act even if its
motivations were as alleged by the General Counsel.
I. ARE HEARTLAND’S NURSES SUPERVISORS
OR EMPLOYEES
Section 2(11) of the Act defines supervisor as—
[a]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The period at issue here is January through mid-March of
1989. If, during that period, HCR bestowed on the alleged
discriminatees any of the authority to which Section 2(11) re-
fers, they were supervisors, not employees, e.g., Ohio Power
Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949); Phelps Commu-
nity Medical Center, 295 NLRB 486 (1989).
This part of the decision considers whether HCR did be-
stow any such authority on those Heartland nurses during
such period.4 Because Section 2(11) is to be read ‘‘in the
69HEALTH CARE CORP.
the authority and responsibilities of Heartland’s nurses may have
changed subsequent to the period of concern to us here.
5 As it happens, the nurses who were the subject of the actions by
HCR that the General Counsel alleges violated the Act were all
LPNs. But the evidence shows that the duties of the staff nurses
were virtually the same whether the nurses were LPNs or RNs.
disjunctive’’ (id.), as I consider each facet of the nurses’ au-
thority I will state my conclusion about whether it constitutes
the kind of authority encompassed by Section 2(11).
A. The Organization of Heartland’s Nursing
Department
Anyone who has read virtually any of the dozens of Board
cases on the status of nurses at nursing homes will be gen-
erally familiar with the organization of Heartland. It is a 100-
bed facility divided into two wings, A and B. Heartland is
headed by an administrator and, under the administrator, a
number of department heads, including the director of nurs-
ing (D.O.N.), who heads Heartland’s nursing department.
The D.O.N. is seconded by an assistant D.O.N. (A.D.O.N.).
(All parties agree that the D.O.N. and the A.D.O.N. are su-
pervisors within the meaning of the Act.)
There are around 65 personnel in the nursing department
under the D.O.N. and A.D.O.N., as follows:
—a patient assessment nurse and a treatment nurse
—9 to 11 staff nurses (mostly licensed practical
nurses (LPNs), with a few registered nurses (RNs))5
—50 to 55 nurse aides
One staff nurse is always on duty in each wing. (The treat-
ment nurse does not figure in the events at issue here, and
the patient assessment nurse does so only tangentially. I ac-
cordingly will refer to the staff nurses simply as nurses.)
Generally at least two aides are on duty in each wing, and
sometimes as many as six are. (That variation in the number
of onduty aides will be discussed in more detail below.)
B. The Duties of the Nurses, Generally
In the main, Heartland’s business is the long-term care of
the infirm elderly. None of Heartland’s residents can wholly
take care of themselves. Some are unable to move by them-
selves, or dress themselves, or bathe themselves, or feed
themselves, or control their excretory functions. Some are
even unable change their position in bed by themselves.
Some of the residents must be restrained to prevent them
from injuring themselves. Sudden medical problems are not
uncommon. Nor is death. Many of the residents need medi-
cation. Sometimes that medication is part of a day in, day
out regimen. In other cases the medicine is needed to deal
with a nonroutine problem—often relatively benign (a head-
ache, for instance), sometimes not (as in a sudden increase
in blood pressure).
Heartland’s aides are the ones with whom the residents
have the most direct contact. It is the aides who bathe and
dress the residents, comb their hair, push their wheelchairs,
feed them, deal with their bed pans, and the like.
But by and large it is the responsibility of Heartland’s
nurses to ensure that the needs of the residents are met. As
a practical matter that means that the nurses check for
changes in the health of the residents, administer medicine,
call physicians when that’s warranted, oversee the work of
the aides, maintain detailed records on treatment accorded
the residents, receive status reports from the nurses they re-
lieve, and give status reports to aides coming on duty and
to the nurses’ reliefs, and handle incoming telephone calls
from physicians and from relatives of residents who want in-
formation about a resident’s condition. It can also mean bath-
ing, feeding, or dressing residents when an insufficient num-
ber of aides show up for work. Very little of the nurses’ time
is spent on matters that even suggest supervisory status.
Certainly the nature of the nurses’ work points generally
in the direction of employee status. On the other hand, the
nurses do have authority over the aides and have responsibil-
ities regarding the aides (as will be discussed). And the fact
that the nurses spend only a small fraction of their time exer-
cising that authority and those responsibilities by no means
excludes the possibility that the nurses are supervisors. E.g.,
Northwoods Manor, 260 NLRB 854 (1982).
C. The Nurses’ Role in Assigning Work to Aides
A description of the role of nurses in assigning work to
aides is complicated by shift-to-shift variations in the aides’
work, shift-to-shift variations in the number of aides on duty,
and by the fact that during the relevant period the aides
worked 8-hour shifts while the staff nurses worked 12-hour
shifts.
Nurses work from either 7 a.m. to 7 p.m., or from 7 p.m.
to 7 a.m. And as touched on earlier, there are always two
staff nurses on duty, one at the nurse’s station on each wing.
The aides, on the other hand, work as follows:
7 a.m.–3 p.m.—6 aides per wing
3 p.m.–11 p.m.—4 aides per wing
11 p.m.–7 a.m.—2 aides per wing, with one ‘‘float’’
Shifting aides from wing to wing. If an aide doesn’t show
up for work, the nurse on the understaffed wing (the A wing,
say) may discuss with situation with the nurse on duty in the
other wing (the B wing, in this example). That, in turn, may
result in the two nurses agreeing that one of the B wing
aides should switch during that shift to the A wing. The B
wing nurse has the authority in that circumstance to order
one of the aides to go over to the A wing. But as a practical
matter the nurse lets the aides decide among themselves who
will work on the other wing.
Another possible response is for the nurse on the affected
wing to try to find a replacement for the missing aide. That
will be discussed below.
The role of the night-shift nurses in assigning duties to
aides. Two of the nurses against whom HCR allegedly dis-
criminated, Cynthia Cordrey and Ruby Wells, always (or al-
most always) worked the night shift, from 7 p.m. to 7 a.m.
When nurses on that shift come on duty the four aides al-
ready there have previously been given their assignments.
The night nurse doesn’t change those assignments. Then, at
11 p.m., those four aides (per wing) leave, and two aides
come on duty. But the two aides work together to cover the
whole wing. And aides on that shift rarely have any off-wing
duties to handle. So apart from having occasionally to switch
an aide from one wing to another (as just discussed), the
night-shift nurses have no role in assigning work to aides.
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 It is thus not uncommon for all of the aides on duty to leave
the facility at the end of a shift even though the following shift is
going to be short-handed. By contrast, if the duty nurse’s replace-
ment fails to arrive, the duty nurse has to remain on duty until a
replacement can be found.
The job assignment role of the day-shift nurses. It is up
to the day-shift nurses to tell each aide which residents the
aide is to care for. Some residents require much more care
from aides than others. Moreover the amount of care each
of the residents requires varies from day to day depending
on things like whether the resident is scheduled for a shower.
And in making up the assignments the nurse has to factor
in the aides’ off-wing duties. (Some aides, for example, as-
sist in the dining room during the residents’ meals.) But the
job of assigning work to the aides does not demand great
skill and finesse of the nurses. Every aide is able do the
work of every other aide. And the nature of the aides’ work
is not highly technical. Also, it is Heartland’s office, not the
nurses, that specifies the off-wing work of the aides. In addi-
tion, throughout most of the period of interest to us, the
nurses followed old patterns when setting up the aide-resi-
dent assignments (so that little thought went into the proc-
ess). Lastly, the nurses routinely let the aides decide among
themselves which aide was to cover which residents.
On the other hand, the way the nurses divide up the work
among the aides (on the daytime or evening shifts) can have
a considerable impact on how hard each of the aides has to
work. Also, on about March 9 (which was subsequent to all
of the events that led HCR to decide to fire nurses Cordrey,
Goldsberry and Wells), the D.O.N. ordered a somewhat
changed procedure for assigning work to the aides. At least
one of Heartland’s day-shift nurses, Connie Thatcher, seemed
to have a lot of trouble working out appropriate assignments
for the aides under the new procedure.
Using Section 2(11)’s standards of ‘‘routine,’’ on the one
hand, and ‘‘independent judgment,’’ on the other, I conclude
that the job assignment task of Heartland’s nurses does not
show the nurses to be supervisors. Heartland’s night-shift
nurses, of course, hardly have any assignment functions at
all. As for the day-shift nurses, they have the authority to
vary the aides’ assignments in ways that can make a dif-
ference to the aides, and they are expected to exercise judg-
ment in exercising that authority. But just about any task de-
mands the exercise of some judgment. The question, there-
fore, is the nature of that judgment. And given the nature of
the aides’ work and the fact that each aide has the skills to
do the work of any other aide, the aide assignment duties of
the nurses seem to me to fall well short of ‘‘requir[ing] the
use of independent judgment,’’ as that expression is used in
Section 2(11). See, in this regard, NLRB v. Res-Care, 705
F.2d 1461 (7th Cir. 1983); Ohio Masonic Home, 295 NLRB
390 (1989).
D. Directing the Work of the Aides
Once the aides have their assignments, there is little for
the nurses to do in the way of ‘‘directing’’ them. It is clear
that the nurses have the authority to criticize an aide for im-
properly performing a task, to tell an aide to redo a task in-
adequately done, and to direct an aide to do any minor chore
that isn’t covered by the assignment sheet. Nurses also issue
orders related to any change in the condition of a resident.
For example, ‘‘please watch Jane Doe particularly care-
fully,’’ or ‘‘take John Jones’ temperature in an hour.’’ Fi-
nally, the nurses have the authority to determine when the
aides may take their work breaks; but as a practical matter
the aides usually work that out among themselves.
That does not equate to ‘‘responsibly . . . direct[ing]’’ the
aides ‘‘in the interest of the employer.’’ Apart from the fact
that the nurses’ focus is on the well-being of the residents
rather than of the employer, the direction the nurses give to
the aides is closely akin to the kind of directing done by
leadmen or straw bosses, persons who Congress plainly con-
sidered to be ‘‘employees.’’ See, e.g., NLRB v. Res-Care,
supra.
E. Calling in Off-Duty Aides; Aides’ Overtime; Aides
Leaving Work Early
If an aide doesn’t show up for work, the nurse on duty
on the affected wing of the facility is authorized to and, in-
deed, is expected to, obtain a replacement.
One way the nurse does that is by telephoning off-duty
aides and asking those aides if they want to work an extra
shift or partial shift (generally at overtime pay rates). A list
of Heartland’s aides, with their telephone numbers, is posted
at each of the nursing stations. The nurse on duty simply
calls aides on the list until an aide is found who is willing
to come in. There apparently is no preset order for calling
the aides. So to that extent the nurse has some discretion in
the matter. But the nurse has no authority to order an off-
duty aide to come to work. And the record indicates that nei-
ther the nurses’ superiors, nor the nurses themselves, nor the
aides, consider that discretion on the nurses’ part to be of
any import.
The second way the duty nurse may attempt to deal with
an aide’s failure to show up for work is to ask the aides who
are scheduled to go off duty if one of them is willing to re-
main at the facility, on overtime. (Nurses have no authority
to require any aide to remain on duty past the aide’s sched-
uled departure time.)6 If more than one of the aides wants
the overtime work, the nurse typically lets the aides decide
among themselves which of them will remain at work.
The nurses otherwise have no authority to grant overtime.
Thus the nurses are not authorized to deal with an unusually
heavy workload by asking aides to work on an overtime
basis.
Heartland’s nurses have no authority to let an aide leave
work early for personal reasons. But if an on-duty aide wants
to leave early because she feels sick, she makes the request
to the nurse. Since a sick aide obviously must be allowed to
go home, however, that ‘‘request’’ is really more of a notifi-
cation than an asking to be allowed to leave.
Nurses also perform various clerical-type functions related
to aides arriving late or leaving early—such as initialling
timecards when an aide has worked overtime and recording
the fact of an aide’s absence.
None of the nurses’ functions relating to having aides
work overtime, handling requests to leave early because of
sickness, or the like, suggests supervisory authority on the
nurses’ part. In fact the limitations of the nurses’ authority
in this respect suggests employee status. See Waverly-Cedar
Falls Health Care, 297 NLRB 390 (1989); Phelps Commu-
nity Medical Center, 295 NLRB 486 (1989); compare Bev-
71HEALTH CARE CORP.
7 See Ohio Masonic Home, 295 NLRB at 393 fn. 7.
erly Manor Convalescent Centers, 661 F.2d 1095, 1100 (6th
Cir. 1981) (nurses who had authority ‘‘to adjust . . . em-
ployee schedules in accordance with the vagaries of man-
power needs’’ may nonetheless be ‘‘employees’’ rather than
‘‘supervisors’’).
F. Calling in ‘‘Pool’’ Aides
Employment agencies are available that can on short no-
tice supply an aide (or a nurse) to a nursing home on a tem-
porary basis. But the services of an aide from such a ‘‘pool’’
cost Heartland considerably more than the services of one of
its own employee-aides. Heartland’s nurses wanted the au-
thority to call one of the pools when necessary to deal with
shortages of aides on their shifts. But throughout the period
under consideration here, the nurses’ supervisors explicitly
advised the nurses that they were not authorized to bring in
any pool aides.
G. Rewarding/Promoting Aides
While in theory an aide’s pay may vary depending upon
his or her level of performance, in actuality the pay level of
Heartland’s aides depends solely on their seniority. All the
aides do the same work. They have the same titles. Heartland
never promotes its aides to a better job. So Section 2(11)’s
‘‘reward’’ and ‘‘promote’’ language is beside the point here.
H. Disciplining Aides; Discharging Aides
As touched on earlier, every Heartland nurse routinely
speaks to an aide whenever the nurse sees the aide failing
to perform a task or performing it improperly. But criticism
of that sort does not affect the aides’ careers at Heartland.
Heartland keeps a supply of employee counseling forms at
both of the nurses’ stations. The forms have spaces for the
nurse on duty to describe the problem, for the aide to make
a statement, for the nurse to describe the ‘‘resolution of
problem or action taken,’’ and for the nurse and the aide to
sign the form. At her discretion a nurse may use a coun-
seling form to raise with an aide problems such as the aide
being ‘‘too bossy,’’ improperly passing work off onto other
aides, not working fast enough, and ‘‘not positioning patients
properly.’’
Nurses deliver completed counseling forms to Heartland’s
office where, as far as the nurses are concerned, the forms
disappear. In fact Heartland retains the completed forms in
the aides’ personnel files. The record contains no indication
that the counseling forms that the nurses drafted have ever
had a deleterious impact on any aide.
In that regard I will assume that the General Counsel has
the burden of proving that the nurses against whom HCR al-
legedly discriminated were employees, and, therefore, not su-
pervisors.7 But here we are considering a subissue that ordi-
narily should be able to be easily resolved on the basis of
records in the Respondent’s possession. Given HCR’s failure
to produce any evidence that an aide’s being the subject of
counseling forms ever affected the aide’s career with Heart-
land, I conclude that the nurses’ role in completing coun-
seling forms regarding aides’ behavior is not an indication of
supervisory authority.
Nurses routinely report problems about an aide’s work or
attendance to Heartland’s administrator or D.O.N. Sometimes
those reports have major consequences for an aide—as in the
aide being fired or being advised that any further occurrence
will result in discharge. And sometimes the nurse sits in on
the conference between the administrator or D.O.N. and the
aide in which the aide is advised of that action. But the
nurses themselves do not penalize any aide or threaten any
aide with future penalties. And with only minor exception
the nurses do not recommend that any aide be penalized.
The Heartland nurses have one other arguable connection
to the supervision of the facility’s aides: During some of the
period at issue the nurses participated in ‘‘performance ap-
praisals’’ of the aides.
Heartland’s policy is to have a performance appraisal com-
pleted on each of its employees at the end of their proba-
tionary periods and at yearly intervals thereafter. At the start
of the time period we are focusing on here the nurses did
not have anything to do with the aides’ performance apprais-
als. But beginning in February 1989, in the case of some
aides, but by no means all, one of the nurses on whose shift
the aide worked filled out much of the aide’s performance
appraisal form. (The marking choices were excellent, above
standard, standard, and below standard. The areas covered
were human relations, attitudes toward work, personal ap-
pearance, job capability, development, and patient care.) The
nurses were told not to answer the forms’ ultimate ques-
tions—about overall evaluation and whether or not to rec-
ommend continued employment. After the nurses completed
their parts of the forms they signed the forms as evaluator,
turned them in to one of their superiors, and had no further
relationship with the appraisals. Thus the nurses did not par-
ticipate in the meeting between each aide and the adminis-
trator or D.O.N. at which the performance appraisal was dis-
cussed.
The record does not indicate whether a poor performance
appraisal ever leads to the discharge of an aide, or to the
threat of discharge. As with the counseling forms, it should
have been an easy matter for HCR to show that poor per-
formance appraisals affect aides’ jobs at Heartland. Since
there was no such showing, I assume that the nurses’ role
in the performance appraisal process has no impact on the
aides’ jobs and that that role accordingly does not suggest
supervisory status.
Indeed even if HCR had shown that it does fire aides who
receive poor performance appraisals, the import of that in de-
termining the nurses status would still be unclear. For one
thing, the nurses performed the appraisals only during part
of the relevant time period. For another, they did not perform
appraisals on all aides even during that period. Thirdly, HCR
made it clear that it did not want any recommendation from
the nurses about the aides’ overall evaluation or whether the
aides should be retained as employees. And lastly, the nurses
did not participate in the part of the process that had to have
had the greatest impact on the aides—the meeting with the
administrator or D.O.N. about the aide’s performance.
I conclude that Heartland’s nurses have no authority to
‘‘discipline’’ employees, to ‘‘discharge’’ them, or ‘‘effec-
tively to recommend such action,’’ as those terms as used in
Section 2(11). See Beverly Manor Convalescent Centers, 661
F.2d 1095, 1100–1101 (6th Cir. 1981); Ohio Masonic Home,
supra.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I. Presence or Absence of Senior Personnel
Heartland’s administrator, its D.O.N., and its A.D.O.N.
work daytime, weekday, hours. In the evenings and at night
on weekdays, and all the time on weekends, the two nurses
on duty are the senior personnel present at Heartland. That
suggests supervisory status on the nurses’ part. E.g., Emory
Convalescent Home, 260 NLRB 540 (1982); Northwoods
Manor, 260 NLRB 854 (1982). But it certainly does not
compel the conclusion that the nurses are supervisors, par-
ticularly since the administrator and the D.O.N. are always
on call, and since the nurses do in fact call the administrator
and the D.O.N. at their homes when nonroutine matters arise.
See Waverly-Cedar Falls Health Care, supra at 393; Phelps
Community Medical Center, supra; compare Northwoods
Manor, supra (nurses never called the D.O.N. when the
D.O.N. was off duty).
J. Ratio of Supervisors to Employees
As noted earlier, Heartland’s nursing department includes
the D.O.N. and the A.D.O.N. (both of whom are super-
visors), about 10 nurses, and 50 to 55 aides. (For the purpose
of this discussion I am excluding the patient assessment
nurse and the treatment nurse.) Additionally, Heartland’s ad-
ministrator routinely involved herself in the direct super-
vision of personnel in the nursing department (including, for
example, face-to-face discipline of aides). If the nurses are
deemed supervisors, the department’s ratio of employees to
supervisors (including the administrator) is about 4:1. If the
nurses are not categorized as supervisors then the ratio is
about 20:1. Excluding the administrator from the count pro-
duces a 30:1 ratio. Worse yet, Heartland functioned without
a D.O.N. between December 6, 1988, and February 6, 1989.
A 30:1 (or even a 20:1) ratio is so high that it points
strongly in the direction of supervisory status for the nurses.
See Children’s Habilitation Center v. NLRB, 887 F.2d 130,
132 (7th Cir. 1989); Waverly-Cedar Falls, supra at 393 (con-
cluding that a ratio of 15:1 was ‘‘arguably unreasonabl[y]’’
large); Phelps Community Medical Center, supra at 492 (18:1
employee-supervisor ratio is ‘‘arguably unreasonable’’).
K. Other Matters
I have considered the nurses’ role in grievance handling,
the nature of the training that HCR gave them, their position
descriptions, and the like. But none of those areas seem to
me to be worth much weight in the determination of whether
the nurses should be considered supervisors for purposes of
Section 2(11).
Are Heartland’s Nurses Supervisors—Conclusion
It is clear that in common parlance Heartland’s nurses are
supervisors. They give orders (of certain kinds) to the aides,
and the aides follow those orders. In a manner of speaking,
certainly, the nurse on duty is in charge of a wing of the fa-
cility.
But Section 2(11)’s definition of supervisor is different
from Webster’s. And as I understand the meaning of that
provision, Heartland’s nurses were not supervisors during the
period under consideration.
I’m greatly troubled by that 30:1 employee-supervisor
ratio. But the employee-supervisor ratio is not a criterion
written into Section 2(11). And analyzing the situation at
Heartland on the basis of the criteria that are spelled out in
Section 2(11), the nurses simply do not possess supervisory
authority.
I have also tried to look at the situation as a whole to see
whether a step-by-step analysis is misleading. But doing so
makes it even clearer to me that Heartland does not endow
its nurses with the kind of authority they have to have to be
considered supervisors for purposes of the Act. Throughout
the hearing I kept getting the impression that Heartland’s ad-
ministrator believed that the nurses’ views about anything
other than hands-on care of the residents were not worth con-
sidering. And as I view the evidence, it shows that the be-
havior of the administrator at Heartland repeatedly dem-
onstrated that belief. It’s true that the administrator and her
superiors occasionally gave speeches and the like to the
nurses that said ‘‘you are supervisors.’’ But the actions of
Heartland’s administrator proclaimed in unmistakable fashion
that, to HCR’s management, Heartland’s nurses were just
hired hands.
II. DID HCR DISMISS CYNTHIA CORDREY, JULIA
GOLDSBERRY, OR RUBY WELLS BECAUSE OF THEIR
PROTECTED ACTIVITIES
The context. The impression I got from the record as a
whole is that Cynthia Cordrey and Ruby Wells are the kind
of nurses one would want to have caring for oneself, one’s
relatives, or one’s friends. But I also got the impression that
as Cordrey and Wells proceed through life: (1) at work they
start from the point of view that their supervisors are incom-
petent and treat employees unfairly; and (2) they look for
evidence that proves that that point of view is accurate, over-
looking contrary facts. (As for Goldsberry, it seems likely to
me that she is less prone to seeing life through lenses of that
shape.)
At Heartland in late 1988 and early 1989, as it happens,
there was evidence that supported Cordrey’s and Wells’
viewpoint about their supervisors.
For one thing, the facility was understaffed, particularly in
respect to aides, and HCR wasn’t doing anything effective to
remedy the problem.
For another, Heartland’s administrator, Brenda Stabile, was
relatively inexperienced and vastly overworked. (The extraor-
dinarily low ratio of supervisors to employees in Heartland’s
nursing department has already been discussed, as has the 2-
month vacancy in the D.O.N. position. That had to have an
impact on Stabile. Everyone connected with Heartland, par-
ticularly its nursing department, must have felt the effect of
that situation.)
Third, Heartland was the kind of employer whose man-
agers spoke frequently to employees about the importance of
each employee being a part of the team, when what they
meant is ‘‘we want you to follow orders and to do so cheer-
fully.’’
Pharmacy matters. One of the management actions that
most upset Cordrey, Goldsberry, and Wells, along with most
of the other Heartland nurses, was Heartland’s switching of
its pharmacy business from a pharmacy named ‘‘Village’’ to
one called ‘‘Beeber’s.’’
Heartland’s residents need medicine, sometimes routinely,
sometimes to treat a medical emergency. For years Heartland
had obtained the medicine from Village pharmacy, a mom-
and-pop type operation in Urbana (where Heartland is lo-
73HEALTH CARE CORP.
cated). Many of Heartland’s nurses knew and liked Village’s
owner/pharmacist, Al Weber, and they particularly appre-
ciated his willingness to quickly deliver emergency medica-
tion at any hour, even in the middle of the night. Many
Heartland residents, their physicians, and members of their
families (who tended to live in or near Urbana, of course),
also had long-standing, amicable relationships with Weber.
But not long after Stabile arrived at Heartland as its ad-
ministrator (in July 1988), she concluded that Village had not
been providing Heartland with various documentation that
the State of Ohio required Heartland to have, that Village
had not been fulfilling certain other state-mandated require-
ments, and that Village was not in a position to remedy those
failings. Stabile apparently did not appreciate the strength of
the relationships between the members of the Heartland com-
munity (employees, residents, residents’ family members and
physicians), on the one hand, and Village, on the other. So
she decided to have Heartland use Beeber’s, which is an ‘‘in-
stitutional’’ pharmacy located near Dayton (about 40 miles
from Heartland). The switch became effective on December
1, 1988. As it turned out, the change had one further impact:
it increased the amount of paperwork that Heartland required
of its nurses.
Various Heartland residents, their families, and their physi-
cians, responded with concern and, sometimes, anger, to the
switch. Some of Heartland’s nurses, including Cordrey and
Wells, fed that concern and anger and, indeed, sometimes in-
stigated it, by voicing their own concerns and anger about
the change to those residents, families and physicians, and by
saying that the change could impair the quality of the care
that Heartland’s residents received and might increase the
cost of their medication. In part because of such comments
by the Heartland nurses, Heartland’s pharmacy change be-
came the talk of Urbana—and that talk was not kind to
Heartland. That, in turn, resulted in a drop in the number of
admissions into Heartland, to Heartland’s financial detriment.
The period of this turmoil: from late autumn 1988 on into
February 1989.
The Meeting in Toledo on January 11. On January 10,
1989, Cordrey, Goldsberry, and Wells asked to meet with
Stabile. They wanted to talk to her about various actions by
Stabile (or failures on her part to act) that, they felt, were
harmful to the residents and were making work more onerous
for the nurses and aides. But Stabile said that she was too
busy to meet with them just then, that they should make an
appointment for later in the week.
The three nurses responded by travelling the next day (on
their own time) to HCR’s corporate headquarters in Toledo.
They met with an HCR vice president, Bob Possanza, and
with HCR’s director of human resources for operations sup-
port, Jim Millspaugh. The three nurses voiced four concerns.
One was that Heartland employed an insufficient number of
aides and that Heartland’s wage level for aides and lack of
aggressiveness in recruiting aides ensured that the facility
would continue to employ an insufficient number of aides.
Another was that Heartland seemed to be allowing one aide
to blatantly violate the facility’s attendance rules which, in
turn, embittered all the other aides. The third item the nurses
complained about was the recent switch in the pharmacy that
Heartland used. That switch, the nurses said, impaired the
quality of the care that Heartland’s residents were receiving.
Lastly the three nurses spoke about the difficulties that
Heartland’s nurses had in communicating with Stabile.
All in all, Cordrey, Goldsberry, and Wells made it clear
that they considered Stabile to be mismanaging Heartland.
Once the nurses had had their say Possanza assured them
that they would not be harassed because they brought their
concerns to HCR’s headquarters, that a corporate official—
probably Millspaugh—would visit Heartland to look into
their concerns, and that HCR would advise the three of the
results of that investigation. And, indeed, over the next cou-
ple of months Millspaugh did look into the circumstances at
Heartland.
A. Millspaugh’s Audit of Heartland
Millspaugh’s investigation had two major results.
One was that Heartland increased the pay of its aides, and
hired more aides. Millspaugh determined, that is, that the
three nurses’ contentions about Heartland’s employment of
an insufficient number of aides was correct.
The other principal result of Millspaugh’s investigation is
that HCR fired Cordrey, Goldsberry, and Wells.
Millspaugh’s meeting with Heartland’s department heads.
Less than a week after Cordrey, Goldsberry and Wells jour-
neyed to Toledo, Millspaugh met with the Heartland’s de-
partment heads. (Stabile was not present.) By then
Millspaugh had heard about high levels of tension and em-
ployee dissatisfaction within Heartland. As a group the de-
partment heads liked Stabile, they knew about the trip by the
three nurses to Toledo, they assumed that the nurses had
criticized Stabile’s management of Heartland, and they as-
sumed that Millspaugh might have in mind removing Stabile
as administrator of Heartland. They accordingly presented a
paper to Millspaugh that stated their support for Stabile. Sev-
eral department heads spoke in general terms about problems
resulting from unprovoked hostility toward management on
the part of some employees. During the discussion at least
one department head specifically referred to ‘‘unpro-
fessional’’ behavior by Cordrey, Goldsberry, and Wells.
Millspaugh responded by asking each person at the meet-
ing to list the names of anyone associated with Heartland
whom he or she believed might be responsible for the ten-
sion in the facility, ‘‘people that were kind of maybe making
it a little bit harder . . . to maintain that teamwork effort.’’
When Millspaugh collected the papers, he found that
Cordrey’s and Wells’ names were on every slip of paper, and
Goldsberry’s was on many. A few other employees were
named, but not as often as any of those three.
That meeting was the turning point for Millspaugh’s inves-
tigation. From then on Millspaugh went forward with the
thought that Cordrey, Goldsberry, and Wells probably had a
major hand in the ‘‘negativism’’ (as he called it) that,
Millspaugh believed, was damaging Heartland. If the depart-
ment heads had not mentioned Cordrey, Wells, or Goldsberry
at that meeting in January, in fact, it is unlikely that any of
the three would have been fired.
Millspaugh’s discussions with Stabile. Neither Cordrey,
Goldsberry nor Wells liked Stabile and, predictably, Stabile
reciprocated those feelings. Millspaugh’s investigation into
Heartland’s problems led him to discuss Heartland’s situation
with Stabile, of course, and she commented to Millspaugh
about the three nurses’ lack of cooperation with management,
referring particularly to the pharmacy change. ‘‘They were
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
very vocal about not wanting the pharmacy change,’’ Stabile
said, and they complained to Stabile about the extra paper-
work it meant for them.
Stabile also told Millspaugh that unnamed employees had
committed various improprieties. For example Stabile told
Millspaugh: that she had heard that some nurses had commu-
nicated inappropriately with residents and their families
about the pharmacy change; that the daughter of an A-wing
resident (A wing is where Cordrey, Goldsberry, and Wells
worked) had told Stabile that she had heard that Heartland
employed an insufficient number of aides; that some Heart-
land employees had started rumors about an illicit romance
between Millspaugh and Stabile and about Heartland saving
money by turning off the heat at night; and that on several
occasions during the course of the shifts that ‘‘these ladies’’
worked, Stabile had gotten hate notes under her door. It was
evident that Stabile believed that Cordrey, Goldsberry, and
Wells were at the bottom of all these events, and Millspaugh
came away from the conversation assuming that Cordrey,
Goldsberry, and Wells were in fact the culprits.
Millspaugh’s meetings with employees. As part of
Millspaugh’s audit of Heartland, in mid-January he met with
the facility’s employees, group by group (nurses, aides, and
so on). It seemed to Millspaugh that there was a tenseness,
a hostility toward management, among the aides that there
wasn’t among, say, the housekeeping personnel, and that
among the aides that tenseness was most pronounced among
the aides who worked the second shift (3 to 11 p.m.). More-
over those second-shift aides complained about the pharmacy
change, a change that, to Millspaugh, aides should not have
cared about. There were, obviously, all sorts of possibilities
why the second-shift aides might have voiced the feelings
they did. But given the information that Millspaugh had got-
ten from the department heads and from Stabile to the effect
that Heartland’s problems centered around Cordrey,
Goldsberry, and Wells, what Millspaugh heard from the
aides sounded to him like additional evidence that Cordrey,
Goldsberry, and Wells were at the heart of the tension at the
facility.
Other facets of Millspaugh’s investigation. By mid-January
Millspaugh clearly had, in his own mind, built a case against
Cordrey, Goldsberry, and Wells. He did not, however, take
any action against them. Instead, he continued to look into
Heartland’s problems and to talk to persons associated with
Heartland about those problems. He spoke individually with
some of the department heads, with the facility’s office staff,
with exemployees, and had further talks with Stabile. Either
because of what they said or, just as often, what Millspaugh
led himself to believe based on what they said, he concluded
that: a local physician had stopped referring patients to
Heartland because of what Cordrey, Goldsberry, and Wells
had been saying to him; Cordrey had an unusually bad at-
tendance record, and Wells’ was almost as bad; Cordrey and
Wells without adequate excuse missed a mandatory instruc-
tional meeting; during a recent period Wells had made a
‘‘horrendous’’ number of medical documentation errors;
Cordrey and Wells had been criticizing Heartland to the resi-
dents of the facility and out in the Urbana community; the
three kept talking about Stabile’s unfairness; Cordrey and
Wells had urged Heartland’s medical director (who was not
a Heartland employee) to question the pharmacy change; and
Cordrey and Wells were ‘‘insubordinate,’’ they were ‘‘used
to getting their own way’’ and wanted to keep things that
way.
The events of March 2. Millspaugh met with Heartland’s
nurses on March 2. His main purpose in calling the meeting
was to discuss three topics: (1) Heartland was increasing the
aides’ pay and would be actively seeking to hire more aides;
(2) Stabile would be staying on as administrator; and (3)
Heartland was not going to switch back to Village pharmacy.
Had the meeting been a relaxed, friendly one, that might
have been the end of the matter. But it was not. In
Millspaugh’s words (which I credit):
the demeanor and tone of the meeting . . . was one of
resistance to change, emphatic refusal to get on board
and make Heartland of Urbana a good facility . . .
there was nothing showing me that there was going to
be anything different from what it had been in the past.
Millspaugh had met with Cordrey, Goldsberry, and Wells
just prior to the March 2 nurses’ meeting to tell them, in ad-
vance, what the nurses’ meeting was going to be about.
(Millspaugh did that because he was going to announce at
the nurses’ meeting the results of his investigation. Cordrey,
Goldsberry, and Wells were entitled to advance notice,
Millspaugh felt, because the three were the ones who had
brought about that investigation by their trip to headquarters
on January 11.) Two parts of the conversation at this
premeeting are worth noting. One is that Millspaugh said that
he had heard a rumor that the nurses were planning a walk-
out. But the rumor was entirely erroneous, the three nurses
said so, and Millspaugh believed what they said. The other
is that when Millspaugh said that Stabile would be staying
on as administrator, he went on to say that Stabile had come
to understand that, for Heartland to operate effectively, she
had to work cooperatively with the nurses. Cordrey re-
sponded: ‘‘well, it hasn’t helped.’’
Cordrey had made arrangements to leave before the end of
the nurses’ meeting. Millspaugh interrupted the meeting
when Cordrey left, followed her out, and spoke privately
with her for a few moments. The conversation went some-
thing like this:
MILLSPAUGH: There are problems at Heartland,
Cindy, and I think you’re part of those problems. I’d
like to see you become part of the solution.
CORDREY: Are you firing me?
MILLSPAUGH: No. What I’m asking you to do is to
become part of the team and to become part of the so-
lution to the problems here.
CORDREY: I am not part of the problem.
MILLSPAUGH: Cindy, you’d better think about getting
another job—I think you should resign.
Millspaugh returned to the meeting; Cordrey left the build-
ing.
By March 2—actually, long before March 2—Millspaugh
had concluded that Cordrey, Goldsberry, and Wells were a
central cause of the tension and morale problems at Heart-
land. To Millspaugh, therefore, the hostility he felt at his
meeting with the nurses, Cordrey’s ‘‘well, it hasn’t helped’’
remark about Stabile (during Millspaugh’s premeeting con-
versation with the three nurses), and Cordrey’s denial that
she was a ‘‘part of the problem,’’ were the last straws. He
75HEALTH CARE CORP.
8 Some evidenciary questions inherent in that issue were discussed
during the course of the hearing, at Tr. 1560–1563.
9 Cordrey, Goldsberry, and Wells participated in employee activi-
ties that eventuated in the three carrying a letter critical of
Heartland’s management to the Department of Health of the State of
Ohio. The A.D.O.N. was invited to join in those activities. But nei-
ther Millspaugh nor Stabile nor any other Heartland supervisor who
participated in any way in the events leading to the discharges of
Cordrey, Goldsberry, or Wells ever learned of those activities.
decided that HCR should fire Cordrey, Goldsberry, and
Wells.
HCR fires Cordrey, Goldsberry, and Wells. In the days
following March 2, Millspaugh told Possanza (the HCR vice-
president), Stabile, and Stabile’s immediate superior, that he
thought that Cordrey, Goldsberry, and Wells should be fired.
They all agreed. On March 14 Stabile told Cordrey and
Wells that they either had to resign or they would be fired.
They refused to resign and Stabile did fire them. On March
16 Stabile told Goldsberry the same thing. Goldsberry re-
signed.
B. Did HCR Fire Cordrey, Goldsberry, and Wells
Because of Their Protected Activity
I consider the meeting that Cordrey, Goldsberry, and
Wells had in Toledo with Possanza and Millspaugh to be
protected activity. But I am convinced that Millspaugh did
not hold the three nurses’ trip to Toledo against them. I
make that finding even though Millspaugh’s basis for firing
Goldsberry and Wells is not wholly logical, based even on
Millspaugh’s own testimony. In particular, the final factor
that led Millspaugh to urge that Cordrey, Goldsberry, and
Wells be fired was his private conversation with Cordrey.
And neither Goldsberry nor Wells was mentioned in that
conversation, or even referred to. Beyond that, as I read the
record it should have been apparent to Millspaugh that
Goldsberry had expressed considerably less hostility toward
Heartland’s management than had either Cordrey or Wells.
That suggests that Millspaugh, in his own mind, simply
lumped together the activities of the three. Certainly one rea-
son he might have done that was their joint trip to Toledo.
But throughout Millspaugh’s investigation, numerous people
with whom he spoke referred to Cordrey, Goldsberry, and
Wells in one breath. The probability is that it was those con-
versations that led Millspaugh to think of the three nurses as
a kind of single unit, not the nurses’ trip to Toledo.
That, however, does not end the discussion about whether
HCR fired the three nurses because of their meeting with
HCR’s management in Toledo or whether the nurses were
discharged because of other protected activity.
The basis of criticisms of the three nurses by Heartland
supervisors to Millspaugh. On a number occasions various
Heartland supervisors spoke disparagingly of Cordrey,
Goldsberry, and Wells to Millspaugh. Absent that criticism
of the three nurses by those supervisors, the three would not
have been fired. That raises the question of whether the su-
pervisors disparaged Cordrey, Goldsberry, or Wells to
Millspaugh because of the nurses’ protected activity.8
Cordrey, Goldsberry, and Wells on several occasions en-
gaged in protected discussions among themselves and with
other Heartland employees. They tried, concertedly, to meet
with Stabile. And they did meet with Possanza and
Millspaugh. But they also griped to Stabile and other super-
visors in ways and about subjects that the Act does not pro-
tect, complained about Heartland to other employees with no
thought of pursuing concerted action, and complained about
such matters as the pharmacy change and Heartland’s em-
ployment of an insufficient number of aides to residents and
to members of the residents’ families.
As I evaluate the record, it is too sparse (notwithstanding
its many exhibits and 1800 pages of transcript) to permit me
to determine whether the Heartland supervisors made those
criticisms of Cordrey, Goldsberry, and Wells to Millspaugh
solely because of the three nurses’ unprotected activity, or
whether those criticisms stemmed partially from the nurses’
protected activity.9
Meetings of employees called by management. Millspaugh
twice called Heartland’s nurses to meetings, the first time on
January 18, the second on March 2.
At the January meeting various nurses complained about
matters like the insufficient number of aides, the pharmacy
change, and inadequate equipment. Those complaints
amounted to protected activity. Whittaker Corp., 289 NLRB
933 (1988). But that meeting played no part in HCR’s dis-
charge of Cordrey, Goldsberry, or Wells, and I will not con-
sider it further.
Millspaugh’s meeting with Heartland’s nurses on March 2,
his premeeting get-together with Cordrey, Goldsberry, and
Wells on that day, and his private discussion on that day
with Cordrey have all been discussed as have my findings
that Cordrey’s criticism of Stabile at the premeeting and her
‘‘I am not part of the problem’’ statement played a role in
Millspaugh’s decision to fire Cordrey, Goldsberry, and
Wells. But I do not consider either of those two remarks to
be protected by the Act.
A more difficult question is raised by the fact that
Millspaugh based his decision to fire Cordrey, Goldsberry,
and Wells in part on the ‘‘demeanor’’ of the assembled
nurses at the March 2 meeting. And by ‘‘demeanor’’
Millspaugh was referring to body posture (crossed arms and
legs, for example) and facial expressions (angry, irritated
looks).
At the meeting Millspaugh told the nurses that the phar-
macy change they did not like would remain in place, that
Stabile would continue on as administrator, and that anyone
who could not accept those decisions should leave Heartland.
The demeanor of the nurses attending the meeting surely
stemmed from those statements by Millspaugh and from the
nurses’ generalized disapproval of HCR’s management of
Heartland.
Had the nurses verbally expressed their opposition to
Millspaugh, their statements probably would have been pro-
tected by the Act. See Whittaker Corp., supra; Hoytuck
Corp., 285 NLRB 120 fn. 3 (1987). But it would be stretch-
ing things to conclude that the nurses’ nonverbal expression
was protected by the Act, particularly since there is no indi-
cation that the nurses intended that their body postures and
facial expressions by seen by Millspaugh as communication.
There is one last matter to consider regarding the dis-
charges of Cordrey, Goldsberry, and Wells. That is, the pro-
tected activity of Cordrey, Goldsberry, and Wells in meeting
with HCR’s management in Toledo on January 11 led to
their being fired.
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Millspaugh undertook his investigation into Heartland’s
circumstances because of what Cordrey, Goldsberry, and
Wells said about Heartland at their meeting with manage-
ment in Toledo. Absent that trip to Toledo by the nurses, that
is to say, no such investigation would have been conducted.
And it was Millspaugh’s investigation of Heartland that re-
sulted in Millspaugh’s recommendation that HCR discharge
the three. Had there been no investigation, Cordrey,
Goldsberry, and Wells might well still be working at Heart-
land.
Arguably, if the Board permits protected activity to have
that kind of deleterious impact on employees, employees will
feel less free to engage in protected activity. It seems to me,
however, that there were too many links in the causal chain
connecting the Toledo meeting with HCR’s discharges of the
three nurses for the Board to conclude that HCR fired the
nurses ‘‘because’’ of their protected activity.
I accordingly conclude that the General Counsel has failed
to prove that HCR discharged Cordrey, Goldsberry, or Wells
because of employee activity that the Act protects.
III. THE WRITTEN WARNINGS THAT HCR ISSUED TO
CORDREY, WELLS, AND THATCHER
On February 27, Stabile handed Cordrey three written
warnings, and gave Wells four. Stabile gave two written
warnings to nurse Connie Thatcher on February 23, and an-
other on March 10. The General Counsel alleges that HCR
issued all of those warnings because of the nurses’ protected
activity rather than for the reasons stated in the warnings.
My conclusion is that HCR’s issuance of warnings to
Cordrey and Wells about missing an ‘‘inservice’’ did violate
the Act, but that HCR’s issuance of the other warnings did
not.
A. The Warnings About Improper Documentation
Thatcher and Cordrey each received a notice of a ‘‘verbal
warning’’ for having made 14 and 20 errors, respectively, in
their January 1989 records of their treatment of residents.
Wells received a ‘‘written warning’’ (which is more serious)
for 44 such errors. In all three cases the warnings were dated
February 15.
Much of Heartland’s revenue comes from the State of
Ohio and from the Federal government on behalf of indi-
vidual residents, rather than from the residents themselves, as
a result of Medicaid and Medicare reimbursements and the
like. The State of Ohio, however, reduces such payments to
the extent that the treatment that Heartland furnishes to any
resident is not properly documented. At least in part because
of that threat of reduced revenues, Heartland generally em-
ploys a ‘‘patient assessment’’ nurse (PAS nurse) whose sole
job is to check the patient records written by Heartland’s
other nurses. When Heartland’s PAS nurse comes across a
record that is inadequate or incorrect she either corrects it
herself or tells the nurse who wrote the record to correct it.
On February 7, 1989, the State of Ohio notified Heartland
that on the following day a State patient assessment team
was going to audit Heartland’s records for the months of No-
vember, December, and January. Heartland’s management
did not consider that to be wonderful news, particularly since
during the latter part of that period Heartland had no D.O.N.
and no PAS nurse. HCR responded by having five relatively
senior personnel check Heartland’s records, trying to find
and correct errors in the too few hours available to them be-
fore the State’s auditing team arrived. ‘‘Frantic’’ is the adjec-
tive that comes to mind.
Those HCR personnel began their review by examining
the A wing’s records. It turned out that they never did have
time to get to B wing. And what they found in their search
through A wing’s records was an enormous number of errors
by the nurses who worked on that wing.
Many of the errors were of the minor, technical, variety.
And if those errors had come to management’s attention in
the normal course of events, little would have been said
about them. But the circumstances here were not at all nor-
mal (given the State’s audit), with the result that, because of
those documentation errors, Stabile disciplined each of the A
wing nurses. Some of the nurses (including Goldsberry)
merely got a talking to. As indicated above, Cordrey, Thatch-
er and Wells got written disciplinary notices. They were the
only nurses to receive such notices in the aftermath of the
State’s inspection.
In some respects Heartland behaved unfairly in handing
out those written disciplinary notices. Heartland’s nurses had
come to expect that a PAS nurse would handle any errors
that they might make; some of the errors were so technical
that the nurses didn’t consider them to be errors at all; and
at the hearing neither Stabile nor Cooper (the D.O.N.) was
able to convincingly explain why some nurses had gotten
written disciplinary notices and some had not.
The General Counsel points to that unfairness and argues
that it proves that HCR handed out those disciplinary notices
for unlawful reasons. But my conclusion is that what it
proves is that the episode was enormously unsettling to Sta-
bile—it showed, after all, that there had been a serious man-
agement failure—and that it led her to lash out without fully
thinking through what corrective action would be appro-
priate. It is worth noting, moreover, that Goldsberry, who in
January had travelled to Toledo with Cordrey and Wells to
complain about Stabile’s management, did not receive a dis-
ciplinary notice about her errors; while Thatcher, who had
not participated in that meeting, did.
B. HCR’s Discipline of Cordrey and Wells for
Missing an ‘‘Inservice’’
From time-to-time Heartland puts on training sessions for
its nurses. Heartland calls those sessions ‘‘inservices.’’ Some
inservices are ‘‘mandatory,’’ some are not. One of the
aftermaths of the documentation problems unearthed in con-
nection with the State’s audit (as just discussed) was a man-
datory inservice on documentation that Heartland held for its
nurses on February 16.
Of Heartland’s dozen or so nurses, only six attended the
inservice. That led a number of HCR supervisors to conclude
that at least some of the nurses who did not attend stayed
away concertedly. (‘‘Blue flu’’ was the term that the super-
visors used among themselves in referring to the absences.)
Cordrey and Wells were among the nurses who did not at-
tend. They received written disciplinary notices for their fail-
ure to attend. None of the other nurses who missed the meet-
ing received any written discipline. (Goldsberry did not at-
tend, but that was because she was on duty. Thus the fact
that Heartland did not discipline Goldsberry for not attending
the inservice is beside the point.)
77HEALTH CARE CORP.
10 I established a briefing schedule that that gave HCR an oppor-
tunity to file a reply brief (an opportunity that it utilized) because
of my concern about the lack of clarity, as of the end of the hearing,
about what protected activity the General Counsel was contending
that Heartland’s employees engaged in. But issues relating to man-
agement’s beliefs about employee activities had no bearing on the
discussion about briefing schedules. In any case, the General Coun-
sel’s brief (G.C. Br. p. 17) does contend that HCR’s supervisors
‘‘were somehow convinced that the nonattendance at the in-service
training was . . . some sort of concerted action.’’
11 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Stabile’s decision to issue disciplinary notices to Cordrey
and Wells because of their failure to attend the inservice is
peculiar in a number of respects.
The first is that Heartland failed to comply with its own
policies in respect to the notice of the meeting that it gave
to the nurses. That policy promises at least 2 weeks’ notice
of any mandatory inservice. Heartland gave the nurses only
a few days’ notice of the February 16 inservice.
Second, Cordrey was not on duty at Heartland at any time
in the period between the announcement of the inservice and
the inservice itself. Heartland’s D.O.N. tried to telephone
Cordrey to advise of the inservice but never reached her. So
Cordrey was never officially notified of the inservice.
(Cordrey did learn about it from other nurses, however.)
Third, in advance of the inservice both Cordrey and Wells
advised management that they could not attend it. Cordrey
called the D.O.N. to say that her daughter was very sick and
that the inservice conflicted with a doctor’s appointment.
Wells turned in a note the day before the inservice that ad-
vised that she ‘‘may not be able to attend meeting’’ because
‘‘sons both ill.’’ In contrast, Thatcher, who was out sick, was
not disciplined for failing to attend the inservice. Nor was
nurse Karen Froebe, who had asked to be excused from the
inservice in order to take her son to a dentist.
It seems to me that HCR’s discipline of Cordrey and
Wells for having missed the inservice was related to the su-
pervisors’ belief about the ‘‘blue flu.’’ That is, I find that
Stabile concluded that the reasons that Cordrey and Wells
gave for missing the inservice were untrue, that the actual
reason that they missed the inservice was to concertedly pro-
test management’s treatment of Heartland’s nurses, and that
that reason for missing the inservice did not amount to an
acceptable excuse.
Cordrey and Wells, of course, deny that they engaged in
any such protected activity. But that is immaterial. (In fact
I need not, and am not going to, determine whether to credit
their denials.) An employer violates the Act if it disciplines
an employee because of its belief that the employee engaged
in activity of the kind that the Act protects, whether or not
the employer is correct in that belief. Mashkin Freight Lines,
261 NLRB 1473, 1476 (1982).
Here HCR did not discipline Cordrey and Wells for what
HCR believed was their concerted activity. Rather, HCR dis-
ciplined Cordrey and Wells for their absence from the inserv-
ice on the ground that what Stabile believed to be their con-
certed protest was not a proper excuse for missing the meet-
ing. But as far as the Act is concerned, that is a difference
without meaning. See, e.g., Go-Lightly Footwear, 251 NLRB
42 (1980).
The more difficult question is whether this issue was liti-
gated. In particular, the General Counsel’s brief does not
argue that HCR violated the Act in the manner I have just
outlined.
But the complaint specifically alleges that HCR issued
written warnings to Cordrey and Wells because they engaged
in protected activity ‘‘and/or because Respondent believed
they did so.’’ (See, in regard to the relative importance of
complaint and brief in delineating issues, Louisiana-Pacific
Corp., 299 NLRB 16 (1990).) And the facts about manage-
ment’s belief about the ‘‘blue flu’’ are uncontested.10
I accordingly conclude that HCR violated Section 8(a)(1)
of the Act when it concluded that Cordrey and Wells
concertedly determined to miss the January 16 inservice as
a protest of the management of Heartland and, because they
missed the inservice, disciplined them.
I have considered whether the discipline HCR meted out
to Cordrey and Wells regarding the inservice played any part
in HCR’s decision to fire the two nurses, or whether the be-
lief on the part of HCR supervisors that Cordrey and Wells
concertedly absented themselves from the inservice was a
cause of their discharges. But I conclude that neither was the
case. Or, in Wright Line’s terms,11 I conclude that the record
shows that HCR would have fired Cordrey and Wells even
had HCR not held that belief and not disciplined the nurses
for missing the inservice.
C. HCR’s Discipline of Thatcher Regarding
Assignment of Aides
On March 9, Heartland’s D.O.N., Cooper, told the nurses
that henceforth they would be required to assign aides to par-
ticular residents. Cooper described the criteria that she want-
ed the nurses to apply in drawing up the assignments.
Thatcher had trouble that night in following Cooper’s in-
structions. That, in turn, led to ‘‘turmoil’’ among the aides
on Thatcher’s shift. Cooper responded by disciplining
Thatcher for not following Cooper’s instructions.
That disciplinary action seems a bit abrupt, especially
when compared to Heartland’s usual disciplinary practices.
But at the hearing I got the impression that Cooper is an ab-
rupt kind of person. All in all, the record fails to indicate
anything other than that the only reason that HCR issued
Thatcher that March 10 disciplinary notice is the reason stat-
ed in the notice—‘‘inappropriate’’ aide assignments.
D. HCR’s Discipline of Cordrey, Thatcher, and Wells
for Excessive Absences
According to Heartland’s ‘‘Absence Policy’’:
The following occurrences may constitute excessive ab-
senteeism. . . .
(1) Two (2) absences in a month or 6 absences in
a 12-month period.
In Heartland’s parlance, an ‘‘occurrence’’ is any day or
consecutive group of days during which HCR would have
scheduled the employee to work but for the absence, whether
or not the absence was for a valid reason. Thus, for example,
being out sick for 2 weeks in a row would constitute one oc-
currence.
At the start of the period of concern to us here,
Heartland’s supervisors routinely ignored that policy. But
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when Cooper arrived at Heartland, she reimplemented it.
That led to Cordrey, Thatcher, and Wells receiving discipli-
nary notices because of ‘‘excessive absences.’’
There were some anomalies in those disciplinary actions.
(For example, one of Cordrey’s ‘‘occurrences’’ as stated in
her disciplinary notice was her absence when she attended
the funeral of her father-in-law. Yet funeral leave is a speci-
fied HCR employee benefit.) But my conclusion is that the
disciplinary notices that HCR issued to Cordrey, Thatcher,
and Wells for excessive absences were nothing more than
that; they had nothing to do with the employees’ protected
activities.
E. Wells’ Discipline for an ‘‘Unexcused Absence’’
Stabile needed someone to work from 7 until 11 p.m. or
midnight on February 3. On January 30, she talked to Wells
about it. Wells agreed to work those hours, subject to certain
preconditions being fulfilled by Stabile. Stabile agreed to
those preconditions. But things went awry. Stabile may have
misunderstood Wells when Wells described those pre-
conditions. Or Stabile or Wells may have misremembered
what the agreement was.
The result was that Stabile proceeded to fulfill what she
believed (rightly or wrongly) her agreement with Wells to be
and counted on Wells to work on the night of February 3.
But on the morning of February 3 Stabile got a note from
Wells saying that since Stabile hadn’t met the preconditions
discussed on January 30, she was not going to work that
night.
As far as Stabile was concerned, Wells had reneged, leav-
ing Heartland in the lurch. Stabile accordingly disciplined
Wells because Wells had not worked on a shift that she had
‘‘committed’’ to work, without an ‘‘acceptable excuse.’’
Moreover Stabile treated Wells’ failure to work on the
evening of February 3 as an ‘‘absence.’’ That led Stabile to
issue a second disciplinary notice, this one for being absent
too often (twice in month—February 3 and on another date
in February).
Wells was outraged. And it’s easy to see why. But I find
that Wells’ protected activity had nothing to do with Sta-
bile’s disciplining of Wells.
REMEDY
The recommended Order requires HCR to cease and desist
from its unlawful actions and to take the usual affirmative
action in remedying the unlawful action it did take, including
removing from any files it may still keep on Cordrey and
Wells any reference to its unlawful discipline of them.
[Recommended Order omitted from publication.]