River Oaks Nursing Home

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AAL, Inc., d/b/a River Oaks Nursing Home and United Food and Commercial Workers Union, Local 096. Case 14-CA-15123 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 11 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed 29 June 19811 by United Food and Commercial Workers Union, Local 896, the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a com- plaint 14 August 1981 against the Company, the Respondent, AAL, Inc., d/b/a River Oaks Nursing Home, the complaint alleging that the Respondent violated Section 8(a)(1) of the Act by discharging employees Deborah Patterson and Glena Scott for engaging in a protected concerted work stoppage. The answer and amended answer filed by the Respondent deny the allegations in the complaint and the commission of any unfair labor practices. On 19 November 1981 the Charging Party, the General Counsel, and the Respondent entered into a stipulation of facts in which they agreed that cer- tain documents shall constitute the entire record herein2 and that no oral testimony is necessary or desired by any of the parties. The parties expressly waived all intermediate proceedings before a judge and petitioned that this case be transferred to the Board for the purpose of making findings of fact and conclusions of law and issuing an appropriate order. By order dated 22 April 1982, the Board ap- proved the stipulation, transferred the proceeding to itself, and set a date for the filing of briefs. Thereafter, the General Counsel and the Respond- ent filed briefs, which have been considered by the Board.3 The Board has considered the entire stipulated record and the briefs submitted by the parties, and makes the following ' All dates herein are in 1981 unless otherwise indicated 2 The stipulated record consists of the charge, complaint , answer, amended answer, the Union's preelection contract proposal questionnaire, a letter and proposed contract from Union President Russow to the Re- spondent dated 4 June 1981, letters of termination from the Respondent to employees Scott and Patterson, both dated 23 June 1981, the stipula- tion, and the motion to transfer proceedings to the Board 3 The General Counsel has moved to stoke the Respondent's brief be- cause it sets forth "facts" not included in the parties' stipulation, and the Respondent has filed an opposition thereto As we have relied solely on stipulated facts, we hereby deny the General Counsel's motion The Respondent has requested oral argument This request is hereby denied as the record and briefs adequately present the issues and positions of the parties The Respondent, a Missouri corporation, oper- ates a nursing home at Steele, Missouri, which pro- vides medical and nursing care services to elderly patients. During the 12 months preceding the making of the stipulation, a representative period, the Respondent received gross revenues in excess of $100,000, and purchased goods and services in excess of $5000 from points located outside the State of Missouri. The parties stipulated, and we find, that River Oaks Nursing Home is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it is a health care institution within the meaning of Section 2(14) of the Act. We fur- ther find that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that United Food and Commercial Workers Union, Local 896 is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The question presented is whether the conduct of Scott and Patterson in walking off their jobs in midshift was unprotected, and their discharges therefore lawful, because their action was under- taken independently and in derogation of the exclu- sive bargaining representative. B. The Stipulated Facts The Union was certified on 28 May 1981 to rep- resent two separate units of the Respondent's em- ployees: (1) service and maintenance employees, in- cluding nurses aides; and (2) technical employees, including licensed practical nurses. Prior to the election the Union distributed questionnaires to all unit members requesting them to select bargaining objectives they wished the Union to pursue in the event of an election victory. Question 25 asked whether the Union should attempt "to establish a patient/employee ratio (adequate staffing) and spe- cific standards of patient care?" The Union's writ- ten bargaining proposal of 4 June, which was formed by the questionnaire responses and a meet- ing of unit employees on 20 May, reflected its posi- tion on staffing in article 19(M) of the proposed LRN contract which stated: 275 NLRB No. 12 RIVER OAKS NURSING HOME The employer and the Union agree to meet on a regular basis in an effort to insure adequate staffing and that RN's and LPN's shall not count toward staffing.4 River Oaks Nursing Home houses 90 elderly pa- tients. Its normal employee complement on the second shift (3 to 11 p.m.) consists of six nurses aides and two licensed practical nurses. A regis- tered nurse is on duty until 5 p.m. In cases of em- ployee absences the Respondent's practice is to call in available substitutes as it deems necessary for proper patient care. At the start of the second shift on 19 June LPN Scott realized that only four of the six scheduled nurses aides were present, and went to registered nurse Cheryl Bunn's office and asked why they were short of help. Bunn replied that all of the part-time employees had been used up and Scott would have to do the best she could. Patterson re- turned later with Scott and asked Bunn if she could obtain any more help. Bunn answered that she had tried to call Stan Gunnels, one of the absent aides. Scott then informed Bunn that they would not get the patients out of bed for dinner, and returned to the nursing station to issue that instruction to the aides. Bunn, however, countermanded Scott's in- struction. Patterson and Scott then tried to per- suade Bunn to push back the dinner hour. Bunn and Administrator Tom Butler refused the request and determined that, by postponing nonessential tasks, the patients could easily be fed on schedule with the personnel available. Patterson and Scott conferred briefly, then went to Bunn's office about 3:50 p.m. and put their keys to the medicine room on Bunn's desk. Patterson said, "We will back when this place is properly staffed." Bunn asked Patterson, "Are you quit- ting?" Patterson repeated the same statement and she and Scott then walked out of the nursing home.5 Following the walkout Patterson telephoned Local 896 President Russow about 4:30 p.m. and advised him of the work stoppage. Russow asked 4 The Union did not advance any further position on staffing until it commenced bargaining negotiations with the Respondent after the walk- out incident herein At the first bargaining meeting on 2 July the Union discussed establishment of a prescribed employee-patient ratio (excluding LPNs); however, on 6 August the parties agreed that treatments might be transferred from the 7 to 3 shift to the 3 to 11 shift and the Union aban- doned its proposals on staffing 5 Patterson and Scott left only minutes before they were to administer medications and treatments to the patients Such medications and treat- ments are required to be administered by licensed personnel only and in accordance with the times specified by each patient's physician The medications were dispensed 1 hour and 15 minutes late that shift by an LPN and RN who were called in to assist Another RN came to work from 4 to 8 p in, and Bunn also remained for 3 hours beyond her sched- uled 5 p in quitting time Aside from the foregoing, the patients were cared for by unlicensed nurses aides dung the remainder of that shift 85 why Patterson had not consulted him before walk- ing out, telling her that it was against Local 896 policy to walk out before discussing a dispute. Russow said that he might be able to do something at River Oaks because he knew the complications caused in such institutions by walkouts. He told Patterson that he would arrange for them to meet with the Respondent and try to obtain their return to work, and also discuss the staffing conditions on 19 June. Scott and Patterson did not return to work that day or on 20 and 21 June, and the Re- spondent notified them by letter on 21 June that they were suspended from their jobs. On 23 June Russow, Patterson, and Scott met with General Manager Shirley Davenport. Russow complained to Davenport that the staffing on 19 June was insufficient and should be augmented. Russow also questioned the licensing, qualifica- tions, and experience of some of the staff aides and further urged that LPNs be advised of help short- ages so they could make adjustments on the floor. Davenport refused to reinstate Scott and Patterson, converted their suspensions to discharges, and left any further discussion of staffing for the bargaining meeting scheduled for 2 July. The sole reason given for the discharges was that they left their jobs during the shift on 19 June. C. Contentions of the Parties The Respondent contends that it lawfully dis- charged Scott and Patterson for engaging in an un- protected work stoppage on and after 19 June in support of their demands for permanent mandatory replacement of absent aides. It asserts, inter alia, that the work stoppage was unprotected because they bypassed the bargaining representative and forced the Respondent to choose between unlaw- fully dealing with them independently of the Union or suffering a work stoppage by refusing to do so. The Respondent cites Operating Engineers Local 948 (Oklahoma Hospital), 238 NLRB 1113 (1978), and Emporium Cap well Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), in support of its contention that such separate em- ployee action is unprotected. The General Counsel argues that the evidence does not establish that the employees were seeking permanent staffing changes but rather only griev- ing over inadequate staffing on the affected shift. It asserts that the cases relied on by the Respondent are inapposite because the unions there, unlike here, were already engaged in bargaining or griev- ance discussions about the subject matter of the employee action. Instead, the General Counsel con- tends that the Board decisions in Edmonds Villa Care Center, 249 NLRB 705 (1980), and East Chi- 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cago Rehabilitation Center, 259 NLRB 996-(1982), enfd. 710 F.2d 397 (7th Cir. 1983), which found similar -walkouts protected concerted activity, are controlling precedents for finding that the Re- spondent's discharge of strikers Scott and Patterson violated Section 8(a)(1) of the Act. D. Discussion It is well established that unauthorized strike action by unit employees in support of demands which are inconsistent with those of the Union is outside the protection of Section 7 of the Act be- cause it is in derogation of the Union's representa- tive status.6 An exception to that principle in which such separate employee action is found to be protected occurs when such action is -in support of, rather than "in criticism of, or opposition to, the policies .and actions theretofore taken by the [Union]." NLRB v. R. C. -Can Co., 328 F.2d 974, 979 (5th Cir. 1964), enfg. 140 NLRB 588 (1963).' We, find that the actions of Scott and Patterson here do not fall within the R. C. Can exceptions and so were not protected by Section 7. Their part- ing statement-"We will be back when this place is properly staffed"-demonstrated, contrary to the Union's bargaining position, a demand for a specif- ic (scheduled) number of nurses aides. Significant- ly, the Union had considered but decided against proffering a contract proposal for specific staffing of aides. Instead, its 4 June contract contained lan- guage calling only for joint employer and union monitoring of staffing levels." The facts establish that • the walkout on 19 June occurred without prior union knowledge or authority. Union Presi- dent Russow upon learning of the walkout from Patterson immediately admonished her that it vio- lated union policy. Russow's subsequent efforts to return Scott and Patterson to their former jobs do not constitute evidence of union ratification or sup- port for their walkout.9 Russow did not avail him- self of the opportunity, at the 23 June discussion of the incident or at' any relevant time, 1 ° of joining in 6 Emporium Capwell, above ° See Energy Coal Income Partnership, 269 NLRB 770 (1984) 8 Thus, we reject our dissenting colleague's view that Scott 's and Pat- terson's demands that the Respondent maintain the scheduled staffing level of six nurses aides was not inconsistent with the Union 's position in collective bargaining 8 Russow's statement that "he might be able to do something [for Scott and Patterson] at River Oaks because he knew ,the complications ,caused in such institutions by walkouts" suggests that he believed that the Re- spondent would be willing to take them back rather than that they had a "right to reinstatement " 10 We find it immaterial that the Union subsequently advanced (and abandoned) a contract proposal for employee-patient ratios during July and August the demands' of Scott- and Patterson for specific staffing affing of nursing aides. i i In sum we find that the walkout on 19 June was contrary- to union objectives and policy.12 We agree that such dissident employee action is unpro- tected because- it interferes with, the statutory system of bargaining by imposing a secondary bar- gaining front on the Respondent and undermining the status of the exclusive bargaining agent.13 As we have concluded that the conduct of Scott and Patterson was unprotected, we find that their dis- charges did not violate Section 8(a)(1) of the Act. Accordingly, we shall dismiss the complaint. ORDER The complaint is dismissed. MEMBER DENNIS, dissenting. Contrary to my colleagues, I would find that the employees' walkout to protest insufficient staffing at the Respondent's nursing home constituted pro- tected concerted activity. \ While my colleagues interpret the employees' statement-"We will 'be back when this place is properly staffed"-as a demand contrary to the Union's bargaining position, the facts do not sup- port their position. Rather, the facts show that the employees merely demanded 'replacements for the absent nurses aides on their immediate shift consist- ent with the Respondent's current staffing proce- dure, and not permanent staffing changes. The em- ployees' alternative efforts to adjust the shift's dinner routine to compensate for the temporary staff shortage reveal that they did not seek perma- nent staffing changes. Additionally, the employees evidently made no direct appeal to the Respond- ent's management for permanent staffing changes and indicated no dissatisfaction with the Union's ef- fectiveness as their collective-bargaining represent- ative. Although the Union had addressed the staff- ing issue in a collective-bargaining proposal, the Union had taken no definitive position on the sub- ject at the time of the walkout, proposing only that the parties meet "to insure adequate staffing." Thus, I cannot agree with my colleagues' finding of an inconsistency between the employees' demand for, adequate shift staffing and the Union's position in collective bargaining. I' Although •Russow mentioned to Davenport that the 19 June staffing was insufficient and should be augmented, he did not argue for fixed staffing but merely urged that the Respondent advise LPNs of help short- ages so that they could make adjustments on the floor 12 By contrast, the Board found in Villa Care, above, and East Chicago Rehabilitation, above, that the respective employee demands and union positions were mutually supportive 19 Energy Coal Income Partnership, above RIVER OAKS NURSING HOME Although the Union, on learning of the walkout, initially told the employees they should have con- sulted the Union first, the Union proceeded to sup- port the employees' actions. Indeed, the Union of- fered its full assistance in attempting to obtain rein- statement. I find particularly significant the union president's statements at a meeting with the Re- spondent that the staffing on the night of the walk- out was insufficient and should be augmented. 87 For the reasons stated, I conclude that the em- ployees' walkout in response to the Respondent's unilateral change in their conditions of employment was a protected work stoppage. East Chicago Re- habilitation Center, 259 NLRB 996 (1982), enfd. 710 F.2d 397 (7th Cir. 1983); Edmonds Villa Care Center, 249 NLRB 705 (1980). I would therefore find, contrary to the majority, that the Respondent violated Section 8(a)(1) of the Act by discharging the two employees involved in the walkout.