National Health Enterprises-Delfern, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1976

225 N.L.R.B. 1028 (N.L.R.B. 1976)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clara Barton Terrace Convalescent Center, a Division
of National Health Enterprises-Delfern, Inc. and
Local 1918 , Chapter K, Council # 29, American
Federation of State, County and Municipal Em-
ployees, AFL-CIO. Case 7-CA-12200
August 23, 1976
DECISION AND ORDER
On January 27, 1976, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The record in the instant case clearly reveals the
violation of Section 8(a)(3) and (1) as found by the
Administrative Law Judge. Union Chapter Chair-
man Robertson's letter of February 28 to Supervisor
Carnell, instructing her that no union members were
to sign any letter or notes, was written in response to
Carnell's attempt to avoid employee grievances over
assignment of extra work assignments by making
them acknowledge in writing the receipt of such as-
signments. Robertson recognized such a tactic for
what it was-an obvious attempt by Respondent to
sidestep the Union regarding the long and hotly con-
tested issue of assignment of extra work and bargain
directly with the employees. Therefore, as might be
expected from a union chapter chairman, Robertson
wrote a grievance letter to management. That the let-
ter was abrupt or officious in tone and contained an
inappropriate reference to giving Supervisor Carvell
a reprimand does not detract at all from the protect-
ed nature of the letter, which, as found by the Ad-
ministrative Law Judge, was a properly filed griev-
ance protesting working conditions. The cases cited
by the Administrative Law Judge finding such activi-
ty to be protected are completely on point and need
no further elaboration.
Citing the arbitrator's decision, our dissenting col-
leagues argue that Respondent's discipline of Rob-
ertson was based not on the wording of her letter but
rather on its across-the-board opposition to having
employees sign any internal documents and reports.
Such opposition, they argue, is tantamount to insub-
ordination. However, in so doing, they ignore the
context out of which this entire dispute had arisen.
Respondent knew that this letter was not written in a
vacuum but rather was intimately related to the issue
of extra work. Respondent was put on notice as to
the limited nature of Robertson's injunction when
Carnell's request that the employees sign the extra
work assignment form met with union hostility.' In
fact, employee Stevens refused to sign until she first
checked with her chapter chairman and later report-
ed back to Carnell that she would continue to refuse
to sign the assignment sheet. Robertson's grievance
letter immediately followed. In light of this back-
ground, Respondent's attempt to seize on the literal
words of Robertson's letter in order to elevate her
conduct to an unreasonable across-the-board opposi-
tion to employees signing internal nursing home doc-
uments is ill conceived and without any factual basis.
It was, or should have been, obvious to Respondent
that Robertson's position related only to the matter
of extra work. This was manifested in her letter and
statements to Groth on March 11, and repeated in
her advice to Respondent's administrator, Brandt,
shortly after her suspension ended.
Our dissenting colleagues would, of course, defer
to the arbitrator's decision under our Spielberg doc-
trine on the grounds that the arbitrator carefully con-
sidered the facts underlying Robertson's suspension
and arrived at a result which is not repugnant to the
purposes and policies of the Act. However, deferral
in a case such as the one before us is inappropriate
for two reasons. Firstly, the arbitrator evaluated
Robertson's conduct in a strict contractual context,
without once examining or discussing the statutory
protections accorded by our Act. Thus, he quoted
Robertson's testimony at the arbitration hearing that
"the Union and members were not to sign anything
unless it was verified by a steward," as evidence that
she was "misinterpreting the contract," insofar as her
role as a steward was concerned, with the intent "to
reduce or inhibit written communication between the
parties." Her conduct was therefore a "contractly
(sic) unwarranted interference." In his haste to re-
solve the dispute by application of principles of con-
tract, the arbitrator, as might be expected, attached
little or no significance to the part played by Robert-
son's concern with Respondent's attempt to avoid
bargaining.
The arbitrator furthermore did not deal at all with
the statutory protection we accord employees who
pursue such legitimate grievances even if the terms of
such grievances are couched in imprecise or improp-
er language.' Since the arbitrator thus "ignored a
It is apparent that Stop & Shop, Inc, 161 NLRB 75 (1966), cited and
relied on by our dissenting colleagues, is inapposite, since the union steward
in that case told employees not to perform certain work whereas here the
steward did not instruct employees not to work but merely stated that em-
ployees would not sign acknowledgments of extra work assignments which
the Respondent sought as a means of circumventing the Union's pending
grievance
2 See, e g. Crown Central Petroleum Corporation 177 NLRB 322 (1969),
enfd 430 F 2d 724 (C A 5, 1970) Cf The Bettcher Manufacturing Corpora-
tion, 76 NLRB 526 (1948)
225 NLRB No. 139
CLARA BARTON TERRACE CONVALESCENT CENTER 1029
long line of Board and Court precedent construing
the Act" and arrived at a decision "clearly repugnant
to the purposes and policies of the Act" 3 we should
not be bound by this award.4
Our dissenting colleagues have accurately summa-
rized the arbitrator's award as being based on the
finding that "Robertson's conduct amounted to in-
subordination inasmuch as it constituted unjustified
interference with the prerogatives of management.
Hence it justified the disciplinary action taken
against her." They accept this as the end of the in-
quiry. We do not, for it leaves unexamined the issue
of whether the "insubordination" was in fact an ac-
tivity protected by the statute and whether the "pre-
rogatives of management" asserted by Respondent
invaded areas of statutory protection. It is apparent
from what we have set out above that the answer to
both questions is affirmative. From his decision, it
would seem that the arbitrator did not consider these
statutory issues, and his award thus did not satisfy
the Spielberg standards. Even if it be presumed, as
our colleagues may be willing to do, that the arbitra-
tor did consider and decide these issues, it is plain
any such implicit decision necessarily conflicted with
the Act's protection. In either case, deference to the
arbitrator's decision is improper under Spielberg.
Secondly, however inappropriate deferral might be
in the general case where the arbitrator arrives at a
decision repugnant to the Act, it is especially inap-
propriate in a case where the arbitration involves dis-
cipline of stewards or other grievants in reprisal for
their grievance activities. As noted by the Adminis-
trative Law Judge, we recently held in Hawaiian
Hauling Service, Ltd., 219 NLRB 765 (1975), that
The grievance and arbitration mechanism is a
vital cog in the machinery for the resolution of
industrial disputes. An arbitrator's award which
tends to destroy the effectiveness of that mecha-
nism, as the arbitrator's award here does, is
clearly repugnant to the policies of the Act.5
Arbitration awards like the one handed down in the
3 Radio Television Technical School, Inc, t/a Ryder Technical Institute, 199
NLRB 570 (1972)
4 Ryder Technical Institute, supra, Dreis & Krump Manufacturing, Inc, 221
NLRB 309, ALJD, sec iii, D (1975) To allow an arbitrator's ignoring of
the material and decisive facts to preclude our consideration of them in
reaching our own conclusion, as our colleagues do, undermines the protec-
tion the Act affords Here, as in Raul Gonzalez v Albert Shanker, 533 F 2d
832 (C A 2, 1976), the employee's claim is "not founded upon any violation
or inequitable application of the contract," but upon a protection accorded
her by the statute Because the arbitrators both here and there did not
consider or decide that issue, and could not provide an adequate remedy for
such a violation of the statute even had they found it, the award here is as
defective as that in Gonzalez
5 2l9 NLRB at 766
instant case are bound to discourage a grievant's re-
course to the grievance and arbitration procedure for
fear that an inartfully or overzealously worded griev-
ance might subject him to reprisal from his employer.
That being the case, such awards do not merit our
deference.
Accordingly, we, like the Administrative Law
Judge, find suspension of Union Chapter Chairman
Ruthie Robertson violative of Section 8(a)(1) and (3)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Clara Barton Terrace
Convalescent Center, a Division of National Health
Enterprises-Delfern, Inc., Flint, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
MEMBERS PENELLO AND WALTHER, dissenting:
On February 28, 1975, Respondent's Supervisor
Carnell informed various employees, nurses aides,
that as the nursing home was short-handed that day,
each nurses aide present for duty would have to per-
form additional work assignments incident to the
care of extra nursing home patients. Carnell asked
the employees to acknowledge their acquiescence in
the extra assignments by signing the job assignment
sheet, so as to protect Respondent from being subject
to the filing of further grievances over such work as-
signments.' Employee Stevens then complained to
Union Chapter Chairman Ruthie Mae Robertson
about having to do the extra work and signing the
assignment sheet. Robertson looked upon Carnell's
request as an attempt by Respondent to gain employ-
ee acquiescence in working conditions over which
the Union had frequently grieved in the past. If em-
ployees signed the assignment sheets, it would, in
Robertson's words be "contradicting what we've
been fighting for." On Robertson's orders Stevens
went back to Carnell and told her she would not sign
the assignment sheet. In the meantime Robertson
wrote and delivered the following letter to Carnell on
union stationery:
Mrs. M. Carnell, R. N.
This is to state that no union members are to
6 The record shows that the assignment of extra work had been the sub-
ject of numerous grievances filed by Charging Party (herein the Union) in
the past
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign any letters or notes. This is a warning if it
happens again you will be given a reprimand.
Thank You
Mrs. R. M. Robertson,
Chapter Chairman
This letter prompted Respondent's attorney,
Groth, to convene a conference on March 11 where-
in Robertson was accused of insubordination and
asked to withdraw the letter and make a formal apol-
ogy or else face a disciplinary suspension. The nature
of Robertson's explanation to Groth as to why she
wrote the letter is in issue. According to the testimo-
ny of Union Representative William Lucas, who was
prsent at the conference, Groth emphasized the seri-
ous nature of the letter, which, in effect, encouraged
employees never to sign any documents, thereby dis-
rupting the flow of information throughout the nurs-
ing home; whereupon Robertson assured him that
the letter only concerned employees signing state-
ments pertaining to assignment of extra work, and
was not meant to encourage employees to refuse to
sign all nursing home documents. On the other hand,
according to testimony of Respondent's office man-
ager, Jeannette Zemanek, also present at the confer-
ence , Robertson told Groth that the letter was an
unqualified order to management to refrain from re-
quiring employees to sign any and all documents,
and further stated to him that she would write anoth-
er such letter if the occasion presented itself. The Ad-
ministrative Law Judge did not make a credibility
resolution on this specific issue. At any rate, it is un-
controverted that Robertson refused either to apolo-
gize or to retract the letter. Thereupon Groth sus-
pended Robertson for 2 weeks without pay. A few
weeks later, after her suspension period was over,
Robertson informed Respondent's administrator, Pa-
tricia Brandt, that employees would be allowed to
sign routine incident reports and documents where
the specific employee was involved with the subject
matter referred to in that document.
Shortly after her suspension, Robertson, pursuant
to the contractual grievance procedure, filed a griev-
ance over her suspension, which ultimately resulted
in an arbitration hearing on June 26, 1975. On June
29, the arbitrator handed down a decision upholding
the suspension of Robertson. Viewing the issue as
whether Robertson's conduct violated the collective-
bargaining agreement, the arbitrator found that her
letter to Carnell had the blanket effect of prohibiting
employee signatures on all internal nursing home
documents and reports,' and therefore concluded
7 The arbitrator cited Robertson's testimony at the arbitration hearing
that "I said, the Union and members were not to sign anything unless they
were verified by a steward And I still say it"
that the letter amounted to insubordination, thus vio-
lating the contract's broad management rights clause.
Management had a legitimate interest in the free
flow of communication throughout the nursing
home, and Robertson's letter had a tendency to in-
hibit such communication. The arbitrator further
noted that Carnell's initial request that all employees
acknowledge in writing their extra work assignments
was a reasonable management action which did not
itself amount to an illegal attempt to bargain directly
with employees independently of the Union. Approx-
imately 1 month after receiving the arbitrator's ad-
verse decision, the Union filed the instant charge.
Both the Administrative Law Judge's decision and
that of the majority have treated this case as if Re-
spondent disciplined Mrs. Robertson only because
she used offensive language in her February 28, 1975,
note to Supervisor Carnell protesting conduct of the
latter. In doing so they have ignored the real reason
for Respondent's disciplinary action as stated con-
temporaneously by Respondent and as found by the
arbitrator. A recapitulation of the significant facts
ignored by the majority is useful in putting this case
in perspective.
On March 13, 1975, Robertson filed a grievance
protesting her disciplinary layoff. In denying the
grievance, Respondent wrote:
Your grievance stated March 13, 1975 concern-
ing your suspension has been investigated under
Section IX of the Union Contract.
You were suspended for promulgating and en-
forcing or attempting to enforce rules which
contradicted pass [sic] practices and clearly in-
fringed upon management rights to manage and
control it's [sic] business. The rules set forth by
management are both necessary and reasonable
as they pertain to employee conduct.
Your continual refusal to abide by these rules
and your further refusal to withdraw or rescind
your improper and highly irregular attempts to
manage and control the operation of the busi-
ness and since this was your second warning no-
tice within the last nine months, pursuant to Ar-
ticle IX, pursuant to the provision of Article IX
your suspension became effective.
Also your continual insubordination actions to-
ward supervisors by warning and threatening
[sic] contributed toward the decision to place
you on a two week suspension.
After Respondent rejected the grievance, the dis-
pute was submitted to arbitration by a single arbitra-
tor. All the facts before the Administrative Law
Judge were also before the arbitrator. The latter said
that two issues were before him:
CLARA BARTON TERRACE CONVALESCENT CENTER 1031
(1) the meaning, intent, and effect of Mrs
Carnell [sic] actions in resolving the work short-
age on February 28, 1975.
(2) the meaning, intent, and effect of Mrs.
Robertson's communication addressed to Mrs.
Carnell.
In stating the positions of the parties as to the sec-
ond issue, the arbitrator said that Respondent called
Mrs. Robertson's communication to Mrs. Carnell in-
subordination, whereas the Union called it simply
putting the supervisor on notice.
The arbitrator then proceeded to narrate the facts
and concluded that Mrs. Robertson did not interpret
her role and powers under the contract correctly. He
said that Mrs. Robertson "had a right under the con-
tract to conduct an investigation of Cindy Stevens'
complaint which she did not do. She had no right to
put Mrs. Carnell on notice much less to warn or rep-
rimand her."
The arbitrator continued:
The question remains however whether the writ-
ing of the letter was insubordination. In the
opinion of the arbitrator it was. But [it] was in-
subordination which involved refusal to carry
out the contract rather than merely a refusal to
carry out a direct order of supervision. This re-
fusal may have been based on a misunderstand-
ing or ignorance of the contract. But in the case
of an important union official this is not an ex-
cuse. Union officials should interpret the con-
tract correctly as well as the union rules and
their interpretations.
Mrs. Robertson's testimony on June 26, 1975,
also showed that she intends to continue her in-
terpretation of the contract and her role as stew-
ard-"I said, the union and members were not
to sign anything unless it was verified by a stew-
ard. And I still say it. . . ." Moreover, it is this
intention which gives added force to the em-
ployer judgment about the February 28, 1975,
action of Mrs. Robertson. She actually put into
practice on February 28 what she testified to on
June 26. This action was a serious interference
with the rights of management because it was
intended to be a repeated action. Management
cannot ignore the actions of a steward. Every
action must be taken seriously because of the
special position of a steward in relationship to
the employees. For a steward to intend [to] put
management on notice repeatedly without inves-
tigation and to say so in writing and testimony is
serious. It is an unjustified extension of the
grievance procedure.
The arbitrator thus sustained Respondent's con-
tention that Mrs. Robertson's conduct amounted to
insubordination inasmuch as it constituted unjusti-
fied interference with the prerogatives of manage-
ment. Hence itjustified the disciplinary action taken
against her. In reaching this conclusion the arbitrator
did not, as stated by the majority, ignore "a long line
of Board and Court precedent construing the Act"
and arrived at a decision "clearly repugnant to the
purposes and policies of the Act." On the contrary,
his decision was in accord with Board and court pre-
cedent. Not all conduct by a union steward when
acting in that capacity is protected.'
In Stop & Shop, Inc., 161 NLRB 75 (1966) (Mem-
ber Jenkins dissenting), affd. sub nom. Machaby v.
NL.R.B., 377 F.2d 59 (C.A. 1, 1967), the employer
discharged a union steward for telling employees not
to perform certain work contrary to the orders of an
employer representative. The Board held that the
steward's conduct was unprotected and the discharge
was therefore lawful. The Board said (161 NLRB at
79):
On March 8, Machaby [steward] had deliber-
ately engaged in unprotected activity and inter-
fered with management by causing fellow em-
ployees to refuse to obey orders of their
superiors. An employee who attempts to per-
suade fellow employees to . . . commit acts of
insubordination is not insulated from discipline
by the mere fact of his holding union office.'
Respondent did not discipline Mrs. Robertson out
of hand. Respondent's representative, Groth, ex-
plained the reason for Respondent's objection to the
letter to Mrs. Carnell. He also gave Mrs. Robertson
the opportunity to retract it. It was only when she
refused that he imposed the 2-week disciplinary lay-
off.
In Spielberg Manufacturing Company, 112 NLRB
1080 (1955), the Board said that in the exercise of its
discretion it would recognize an arbitration award as
dispositive of an unfair labor practice allegation
where the arbitration proceedings "appear to have
been fair and regular, all parties had agreed to be
bound, and the decision of the arbitration panel is
not clearly repugnant to the purposes and policies of
the Act." The Board emphasized that this standard
did not mean that the Board would decide the issue
the same way as the arbitration panel or the arbitra-
tor. Any such standard would defeat the underlying
purpose of Spielberg, to encourage the voluntary set-
tlement of labor disputes.
In the present case, there is no dispute that the
arbitration proceedings were fair and regular, all par-
8 Charles Meyeis & Company, 190 NLRB 448 (1971)
9 For other cases in which a union steward's conduct while processing a
grievance was held unprotected see Chevrolet, Division of General Motors
Corporation, 161 NLRB 438 (1966), Pathe Laboratories, Inc, 141 NLRB
1290 (1963), Russell Packing Company and Peerless Packing Company, 133
NLRB 194 (1961), Pinellas Paving Company, Inc, 132 NLRB 1023 (1961)
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties had agreed to be bound, and, as we have shown
above, the decision of the arbitrator is not "clearly
repugnant" to the purposes and policies of the Act.
We would therefore, contrary to the majority and the
Administrative Law Judge, accept the arbitration
award as dispositive of the issue in this case and dis-
miss the complaint. Accordingly, we dissent.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge
This case came on for hearing before me at Flint, Michi-
gan, upon a complaint i issued by the Acting Director for
Region 7 against Respondent Clara Barton Terrace Conva-
lescent Center, a Division of National Health Enterprises-
Delfern , Inc. (herein sometimes called the Home).2 The
complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act because it discriminatorily sus-
pended Chapter K Chairman Ruthie M. Robertson for en-
gaging in protected concerted activities and union activities
by voicing a grievance to Respondent 's management. Re-
spondent claims that Mrs. Robertson was given a 2-week
suspension because of insubordination . It further argues
that the Board, under its Spielberg doctrine,3 should refrain
from ordering a remedy for any violation which may have
occurred in deference to an arbitration award which dis-
missed a grievance which was filed concerning Mrs.
Robertson 's suspension . Upon these contentions , the issues
herein were drawn.4
A. The Unfair Labor Practices Alleged
Respondent operates a nursing and convalescent care
home in Flint , Michigan . After certification by the Board,
the Union was recognized by the Respondent as the exclu-
sive bargaining agent for its full - time and part -time nonsu-
pervisory employees There is currently in existence a col-
lective-bargaining agreement between the Union and the
Respondent which covers these employees . Among the
provisions of this contract is a grievance procedure appli-
cable to "any grievance , dispute, or complaint" which
might arise over the interpretation or application of the
contents of the agreement . The contract provides for a
three-step effort to resolve grievances , the third step being
referral to a neutral arbitrator
i The principal docket entries in this case are as follows Charge filed
herein against the Respondent by Local 1918, Chapter K, Council No 29,
American Federation of State, County and Municipal Employees, AFL-
CIO (herein sometimes called Union) on July 28, 1975, complaint issued
against Respondent on September 3, 1975, Respondent 's answer filed Sep-
tember 17, 1975, hearing held in Flint, Michigan, on November 25, 1975
2
Respondent admits, and I find , that it is a Delaware corporation which
operates a nursing home at Flint, Michigan During the calendar year 1974,
Respondent derived revenues in excess of $100,000 from the operation of
said nursing home and , at said home , purchased goods directly from points
and places outside the State of Michigan valued in excess of $50,000 Ac-
cordingly , Respondent is an employer engaged in commerce within the
meaning of Sec 2(2), 2(6), and 2(7) of the Act The Union is a labor organi-
zation within the meaning of Sec 2(5) of the Act
J Spielberg Manufacturing Company, 112 NLRB 1080 (1955)
Ruthie M. Robertson is a cook who has been employed
by the Respondent for a period in excess of 5 years. She is
the elected chairman of Chapter K, a subdivision of Local
1918 which is made up exclusively of the Respondent's em-
ployees. As chapter chairman, Mrs. Robertson appoints
stewards or assistant stewards for various classifications of
employees , such as nurses aides, cooks , and housekeeping
employees . By virtue of her position , she actively partici-
pates in the processing of grievances which arise anywhere
in the Home
One long-term and recurring issue between the parties to
this proceeding has been the question of understaffing or
"working short" in certain classifications of employees,
particularly nurses aides . The State of Michigan publishes
nursing home regulations , found in a state Manual, which
prescribe the maximum number of patients which may be
assigned to the care of a nurses aide. It establishes different
requirements depending on the shift , the level of care
which is being provided, and the number of other person-
nel available to assist in patient care. ' A number of formal
and informal grievances had been filed over a period of
time alleging short staffing , but none have been taken to
the arbitration level of the grievance procedure. "Working
short" can occur because an insufficient number of aides
have been assigned to a given shift at a particular nursing
station , or, as in the case here at issue , because one or more
assigned aides has not reported for duty.
On the morning shift on February 28, 1975, at nurse's
station A , seven nurses aides were assigned for duty, but
only six reported for work When aide Cynthia Stevens
asked Mrs. Carnell, the nursing supervisor, what she was
going to do, Mrs. Carnell replied that she would either
have to call in extra help or reassign the patients to be
cared for by the missing aide to those employees who had
reported. Normally an aide is expected to care for eight or
nine patients , depending on the difficulty involved in at-
tending particular persons , so the latter alternative would
require each aide to care for one or two additional patients
on that day.
Mrs. Carnell requested those aides who had reported for
work to fill in for the missing employee. Mrs. Stevens and
aides Fannie Williams and Colleen Barr were unhappy
about the request. Mrs. Stevens went to the kitchen to see
Chapter Chairman Ruthie Robertson, and told her about
the request. Mrs. Robertson told her to return to her sta-
tion and see if Carvell had called in an extra employee.
Later in the morning, Mrs. Carnell asked aides to sign or
initial a worksheet stating that they had no objection to
"working short," 6 explaining that she wanted them to sign
the sheet so she would be protected from any grievance
which might thereafter be filed for undermanning. Mrs.
Stevens refused to sign and reported this request at a sec-
4 Corrections to the transcript have been approved and noted ac-
cordingly
5 No finding is made here as to whether the Respondent was or was not in
compliance with state regulations concerning the maximum number of pa-
tients to be attended by each nurses aide There is no evidence in the record
that the Respondent has ever been cited by the State of Michigan for viola-
tion of state regulations on this subject
a The sheet itself is not in the record , nor was it placed in the record of the
arbitration proceeding According to the evidence found by the arbitrator,
the sheet was in fact a request by the employee signatories that the care of
the patients to be served by the absent aide be divided among them
CLARA BARTON TERRACE CONVALESCENT CENTER 1033
and visit to Mrs. Robertson. Mrs. Robertson told her not
to sign a sheet agreeing to work short and said that she
would send Mrs. Carnell a letter on the subject.
Mrs. Robertson then took a union letterhead which was
available and penned the following note:
Mrs. M Carnell R.N.
This is to state that no union members are to sign
any letter or notes. This is a warning if it happens
again you will be given a reprimand.
Thank you
Mrs. R. M. Robertson
Chapter Chairman
She put the letter in an envelope and asked Mrs. Stevens to
deliver it to Mrs. Carvell. Mrs. Stevens did so.
On March 11, a meeting was held at the Home for the
purpose of discussing the above-mentioned letter. In atten-
dance at this meeting were Mrs. Robertson, Mrs. Stevens,
Union Executive Secretary William C. Lucas, employee
Lila McDonald, Home Office Manager (and now Assistant
Administrator) Jeanette Zemanek, and Respondent's La-
bor Relations Consultant John F. Groth. Groth asked Mrs
Robertson to explain the letter she wrote to Mrs. Carnell,
stating to her that he felt it was insubordinate. The con-
frontation was a heated one Groth objected to the state-
ment in the letter to the effect that employees were being
instructed not to sign anything. He pointed out that direct
communication was essential to the operation of the Home
and that there were many matters, such as incident reports,
which employees would be expected to sign in the normal
course of their duties. Groth also objected to the action of
a steward in giving a warning to a supervisor.
Testimony varies as to whether Mrs. Robertson then
qualified her objection to signing any documents by agree-
ing to permit the signing of incident reports, or if union
members would only be allowed to sign company docu-
ments with the consent of the stewards. Mrs. Robertson's
principal concern was that employees might be required to
sign documents which contained waivers of their legal
rights under the contract. Groth insisted that Mrs. Rob-
ertson withdraw the letter or be suspended for a 2-week
period of time. He gave her between 30 minutes and an
hour to consider his demand At 2 p.m., Mrs. Robertson
informed him that she would not withdraw the letter so she
was suspended without pay for 2 weeks. Upon her return
to the Home late in March, an additional meeting was held
at which she agreed that employees would be routinely al-
lowed to sign incident reports and matters of a similar
character.
A grievance was filed concerning Mrs. Robertson's sus-
pension It went to an arbitration hearing on June 26 be-
fore Rev. Joseph R. Dempsey, S J , Professor of Industrial
Relations at the University of Detroit's School of Business
and Administration. Father Dempsey rendered a decision
on June 29 sustaining the Company's action in suspending
Mrs. Robertson. After reviewing the facts which had been
presented to him, Father Dempsey concluded that Mrs
Robertson had misconceived her role as a steward under
the contract and had exceeded the authority accorded to
her therein Relying upon the management rights clause of
the contract, he found that Mrs. Robertson's action in writ-
ing the letter of February 28 to Mrs. Carnell constituted
insubordination because she had no contract right to place
Mrs. Carnell under notice of a violation of the contract nor
had she any right to reprimand her. In his opinion, igno-
rance of the limitations contained in the contract could
serve as no excuse to a high union officer such as the griev-
ant in this case. He also concluded that Mrs. Carnell's ac-
tion in seeking signatures on the worksheet to exonerate
her from a possible grievance for undermanning did not
constitute direct bargaining with employees in violation of
the law. He did not address the question as to whether the
actions of the Respondent had violated Section 8(a)(1) and
(3) of the Act. Thereafter, the charge in this case was filed
with the Board.
B. Analysis and Conclusion
1. A determination of the merits
It is axiomatic that the processing of a grievance by a
steward or a grievant is protected concerted activity. If
done pursuant to union responsibilities , it also amounts to
union activity . It is equally well settled that the advance-
ment of a collective grievance is protected activity , even if
the grievance in question is not formally stated or does not
take place under the auspices of a contractual grievance
procedure N.L.R B v. Washington Aluminum Company, In-
corporated, 370 U.S. 9 (1962); N L.R.B . v. Walls Manufac-
turing Company, 321 F.2d 753 (C A.D.C., 1963 ); N.L.R B.
v. Hoover Design Corporation, 402 F .2d 987 (C.A. 6, 1968).
In the present case, the offending letter was written by
Mrs. Robertson to protest a job assignment relating to the
manning of a nurses aide station . It was written on union
stationery , and was signed by a recognized union official
who is charged with the responsibility of presenting griev-
ances to management . As such, Mrs. Robertson's action
fell within the protection of the Act.
Respondent 's first defense to this general proposition is
that the letter itself , and Mrs. Robertson 's refusal to with-
draw it, should lose the normal protection of the Act be-
cause the letter was peremptory and officious in tone, and
because the refusal of employees to sign any documents
presented by management , as indicated by one interpreta-
tion of its contents , interfered with the free flow of commu-
nication necessary to operate the Home. Thus, the Respon-
dent contends that Mrs. Robertson was insubordinate.7
The question of insubordination is basically irrelevant to
the relationship of an employee to an employer when the
former is engaged in the processing of a grievance. When
the processing of a grievance is taking place , a master-ser-
vant relationship ceases to exist. Instead, the parties stand
as equals who find themselves on the opposite sides of a
7 Union Executive Director Lucas testified that in his opinion the initiall-
ing of the worksheet by nurses aides would not preclude the Union from
filing a grievance for undermanning if such a complaint would otherwise lie
However, it is easy to see how relatively untutored individuals such as Mrs
Robertson and her constituents could come to a contrary conclusion con-
cerning a possible waiver of their contract rights, since the announced rea-
son for requesting their signatures was Mrs Carnell's desire to protect her-
self from a grievance related to undermanning
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
litigated proceeding. Crown Central Petroleum Corporation,
177 NLRB 322 (1969), enfd. 430 F.2d 724 (C.A. 5, 1970).
Thus, statements made by an employee during the course
of processing a grievance which are inaccurate ,8 which
question the veracity of an employer,9 or which employ
curse words or similar epithets 1 0 do not serve to remove
from the grievant the mantle of protection which the Act
places about him. In order for an employee to forfeit the
protection of the Act while processing a grievance, his be-
havior must be so violent, or of such an obnoxious charac-
ter, as to render him wholly unfit for further service." The
most that can be said of Mrs. Robertson's choice of lan-
guage in her written communication to Mrs. Carnell is that
it was abrupt and peremptory It was not even so serious
that it required an immediate response . Her notice could
well be deemed to be nothing more than an inartfully
worded but meaningless complaint In any event , the con-
tents of the letter certainly did not render Mrs. Robertson
unfit for further service. The Respondent, who suspended
her for 2 weeks but did not discharge her, has never made
this contention. Accordingly, I reject the Respondent's de-
fense that Mrs. Robertson was suspended for insubordina-
tion, and conclude instead that she was suspended for en-
gaging in union activities and in protected concerted
activities in violation of Section 8(a)(1) and (3) of the Act.
2. The defense of deferral to arbitration
Respondent's second line of defense is that the Board
should stay its hand in this case, irrespective of whether a
violation has occurred, because the propriety of Mrs.
Robertson's suspension has already been the subject of liti-
gation before an arbitrator who rendered a decision unfa-
vorable to the grievant. Respondent relies upon Sptelberg
Manufacturing Company, supra, a case in which the Board
announced that it would, as a matter of policy, defer to
arbitration awards and decline to exercise itsjurisdiction to
examine the merits of a discrimination claim in certain
cases where an arbitrator has already ruled unfavorably to
an alleged discriminatee. The Board stated that it would
defer to such awards where the proceedings appear to have
been fair and regular, where all parties have agreed to be
bound by the decision of the arbitrator, and where the de-
cision of the arbitrator is not clearly repugnant to the pur-
poses and policies of the Act.
In subsequent cases, the Board has had occasion to ex-
plicate and to refine the policy announced in Spielberg.
The Board has demonstrated a marked inclination not to
defer to arbitration awards in those instances where the
subject of the proceedings has involved sanctions applied
by employers to stewards or grievants in reprisal for their
activities in processing grievances. Superior Motor Trans-
portation Co., Inc., 200 NLRB 892 (1972); W. R. Grace &
Co., Southbridge Plastics Division, 179 NLRB 500 (1969);
8 N L R B v Walls Manufacturing Company, supra
9 Will & Baumer Candle Co, Incorporated, 206 NLRB 772 (1973), Hawai-
ian Hauling Service, Ltd, 219 NLRB 765 (1975)
10 Thor Power Tool Company, 148 NLRB 1379 (1964), enfd 351 F 2d 584
(CA 7, 1965)
I1 Prescott Industrial Products Company, 205 NLRB 51 (1973)
Thor Power Tool Co, Inc., supra, Crown Central Petroleum
Corporation, supra In a recent Decision in point, the Board
had occasion to reiterate the reason for this position:
The grievance and arbitration mechanism is a vital
cog in the machinery for the resolution of industrial
disputes. An arbitrator's award which tends to destroy
the effectiveness of the mechanism, as the arbitrator's
award here does, is clearly repugnant to the policies of
the Act. [Hawaiian Hauling Services, Inc., 219 NLRB
at 766.]
In other words, just as the purpose of the Spielberg doctrine
is to enhance the status of grievance and arbitration pro-
ceedings and encourage the parties to collective-bargaining
agreements to resort to such remedies rather than to the
Board, so the purpose of not deferring to arbitration
awards where the punishment of overzealous stewards is at
issue also serves the same purpose, namely to insure that
the grievance and arbitration machinery is used effectively
in the manner in which it is intended. The essence of the
award here in question is that Mrs . Robertson exceeded
her contractual role in processing a grievance and was
thereby insubordinate. The essence of the cases in point
decided under Section 8(a)(1) and (3) of the Act is that a
steward is protected by the Act while fulfilling his role in
processing a grievance, even if he exceeds the bounds of
contract language , unless the excess is extraordinary, ob-
noxious, wholly unjustified, and departs from the res gestae
of the grievance procedure. The award here in question
made no reference to this legal protection. As the award
failed to protect Mrs. Robertson's right to be wrong, it is
not in accord with the policies of the Act and the above-
cited decisional law in point , so it should not serve as a
defense to the Respondent.12
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent Clara Barton Terrace Convalescent Cen-
ter, a Division of National Health Enterprises -Delfern,
Inc., is an employer engaged in commerce within the
meaning of Section 2 (2), 2(6), and 2(7) of the Act.
2. Local 1918, Chapter K, Council No . 29, American
Federation of State, County and Municipal Employees,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By suspending Ruthie M. Robertson because she en-
gaged in concerted protected activities and in union activi-
ties, the Respondent herein violated Section 8(a)(1) and (3)
of the Act.
4. The unfair labor practices recited above in Conclu-
sion of Law 3 have a close , intimate , and substantial effect
on the free flow of commerce within the meaning of Sec-
tion 2(6) and 2(7) of the Act
12 In so stating this proposition, I do not wish to imply that Mrs Rob-
ertson was wrong or that the arbitrator correctly interpreted her role under
the contract As these matters are immaterial to this decision , I pass no
judgment upon them
CLARA BARTON TERRACE CONVALESCENT CENTER 1035
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom, and that it be fur-
ther ordered to take other actions designed to effectuate
the purposes and policies of the Act. As Mrs. Robertson
has already returned to duty, it would be pointless to re-
quire the Respondent to offer her reinstatement. However,
I will recommend that the Respondent be required to make
whole Mrs. Robertson for any loss of pay which she has
suffered by reason of the discrimination practiced against
her, in accordance with the Woolworth formula,13 and with
interest thereon computed at 6 percent per annum (Isis
Plumbing & Heating Co, 138 NLRB 716 (1962)). I will also
recommend that the Respondent be required to post the
usual notice advising employees of their rights and of the
remedy in this case.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the fol-
lowing recommended:
ORDER 14
Respondent Clara Barton Terrace Convalescent Center,
a Division of National Health Enterprises-Delfern, Inc.,
Flint, Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from-
(a) Suspending employees because they have engaged in
concerted protected activities.
(b) Discouraging membership in, or activities on behalf
of, Local 1918, Chapter K, Council No. 21, American Fed-
eration of State, County and Municipal Employees, AFL-
CIO, or any other labor organization, by suspending em-
ployees.
(c) In any like or related manner interfering with, coerc-
ing, or restraining employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act-
(a) Make whole Ruthie M. Robertson for any loss of
pay which she may have suffered by reason of the discrimi-
nation found herein, in the manner described above in the
section entitled "Remedy."
(b) Post at its Flint, Michigan, nursing home copies of
the attached notice marked "Appendix." 15 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by a representative of the
Respondent, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
13 F W Woolworth Company, 90 NLRB 289 (1950)
14 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "`Posted by
Order of the 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend employees because they have
engaged in concerted protected activities.
WE WILL NOT suspend employees because they en-
gaged in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL make whole Ruthie M. Robertson for any
loss of pay which she may have suffered by reason of
the discrimination practiced against her, with interest
thereon computed at 6 percent per annum.
CLARA BARTON TERRACE CONVALESCENT CENTER, A
DIVISION OF NATIONAL HEALTH ENTERPRISES-
DELFERN, INC.