Health Care Corp.

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