Three Fountains Nursing Center

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