Crestfield Convalescent Home/Fenwood Manor

CRESTFIELD CONVALESCENT HOME Manchester Health Center, Inc. d/b/a Crestfield Convalescent Home/Fenwood Manor and New England Health Care Employees Union , District 1199, NUHHCE, AFL-CIO. Case 39-CA-2982 June 15, 1989 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN , CRACRAFT, AND DEVANEY On December 16, 1987, the National Labor Rela- tions Board issued a Decision and Order in this proceeding.' The Board found, inter alia, that the Respondent violated Section 8(a)(1) of the Act by promulgating and maintaining an overly broad, dis- criminatory, and ambiguous no-union -solicitation/- discussion rule on and after February 5, 1986. The Board further found that the Respondent violated Section 8(a)(3) by disciplining employees Carol Chesky and Suzanne Starling pursuant to the un- lawful rule. On petition for review and cross-appli- cation for enforcement of the Board's Order, the United States Court of Appeals for the Second Cir- cuit set aside the Board's finding that the rule vio- lated the Act but remanded to the Board for fur- ther consideraton of whether Chesky and Starling were properly disciplined under the valid rule.2 The Board thereafter accepted the court's remand and notified the parties that they could file state- ments of position with the Board on remand. The General Counsel and the Respondent filed state- ments of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On further examination of the issue presented in light of the entire record, including the court's opinion and the parties' statements , the Board has decided to modify its original Decision and Order as set forth and explained below. The Respondent operates a nursing home in Manchester, Connecticut. The Union was certified on October 1, 1985, as the bargaining representa- tive of the Respondent's service and maintenance employees. Shortly thereafter, a union-sponsored strike commenced and continued until February 5, 1986,3 when the striking employees returned to work. The strike was marked by numerous allega- tions of acts of violence committed by both strikers and nonstrikers against each other. In an effort to effectuate a harmonious and peaceful return to the job and to avoid a disruptive impact on the pa- ' 287 NLRB 328 2 Manchester Health Center Y. NLRB, 861 F.2d 50 (2d Cir 1988). 8 All dates are in 1986 unless otherwise noted 525 tients, the Union agreed to the following rule, which the Respondent announced to all employees on February 5: There will be no solicitation or talk of union activities in patient areas or on work time, only on breaks or lunch time-if found doing so there will be an immediate warning given. In addition to the poststrike rule, the Respondent has maintained a published rule in its employee manual as well as an unwritten understanding that granted employees a certain degree of discretion regarding the manner and timing in withdrawing from "problem" discussions with patients. Thus, under the heading "Suggestions" in the employee manual, rule 6 states, "Do not discuss hospital problems or your problems with the patients or visitors. Be considerate as possible, but also say little as possible about these matters." Consistent with this rule, the Respondent's administrator, Gary Spieker, testified that when confronted with the situation in which a patient initiates a discussion of union activities employees should "try to disen- gage to be assumed that the patient's condition has to be protected. So immediately-you don't try to stop what you're doing, but try to change the sub- ject." On February 5, Carol Chesky, a returning strik- er, received a verbal warning for allegedly violat- ing the poststrike rule against union solicitation or discussion by talking to two patients in their rooms about events during the strike. According to Chesky's credited testimony regarding the events of February 5, she entered the rooms of patients Thelma MacLaughlin and Russell Rice to adminis- ter geriatric assistance . Seeing her for the first time in more than 3 months since the strike began, each greeted her warmly and asked her questions such as how the strike went, was she happy to be back, did all the strikers return, was she treated well by the Union while on strike, and how her children were. To each question Chesky gave a brief reply before proceeding on to the rooms of other pa- tients in performance of her duties. For her conduct on February 5, Chesky received her first "verbal" warning, a written memorializa- tion, which read "[t]alking to patients R. Rice and T. MacLaughlin about union activities." On Febru- ary 10 and March 6, she received two more writ- ten warnings for rule infractions by soliciting em- ployee support for the Union in patient areas. The Respondent's progressive disciplinary policy pro- vides for termination upon receipt of one verbal and two written warnings. The Respondent dis- charged Chesky pursuant to this policy on March 6. 295 NLRB No. 60 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Also on March 6, former striker Suzanne Star- ling received a verbal warning for having a con- versation about the Union with a visitor in a pa- tient area hallway. Starling testified credibly that she was exiting a patient's room when she encoun- tered in the corridor a life-long friend who was vis- iting and searching for a certain patient's room. During the course of their conversation, Starling was asked "how is everything" and "what's new." Starling replied, "Well you know, the Union is in now." Spieker overheard this statement and caused a verbal warning to be issued for "Solicitation of visitors in hallway of Wing I during working hours." As noted above, the Board in its original deci- sion found that the Respondent's February 5 no- union-solicitation/discussion rule was overly broad, ambiguous, discriminatory, and thus invalid on its face. The Board further found that any disciplinary action taken against Chesky and Starling pursuant to the unlawful rule was a fortiori unlawful. The Second Circuit disagreed with the Board and held that "where a health-care facility has been in- volved in a bitter and divisive strike, it may, as part of a strike settlement, agree with the Union to limit discussion of union affairs to nonpatient areas during non-work time."4 Having found that the rule was a reasonable , nondiscriminatory restriction on the discussion of union affairs , the court also found that the warnings given by Chesky on Feb- ruary 10 and March 6 were lawful because her conduct on those dates was undisputedly covered by the lawful rule. The court remanded this case to the Board, however, because it was unclear wheth- er the discussions of union activities by Chesky on February 5 and by Starling on March 6 actually violated the rule. Furthermore, as to Chesky, the court stated that if the warning based on her con- duct on February 5 was invalid, then her discharge was also invalid because she would not have had the requisite number of lawful warnings under the Respondent's progressive disciplinary system.5 In compliance with the court's remand, we accept as the law of this case the court's finding that the February 5, 1986 rule agreed to by the Re- spondent and the Union was valid. We have recon- sidered the application of the rule to the conduct of Chesky and Starling on the dates in question. We find that Chesky did not violate the rule on February 5, and that the Respondent therefore vio- lated Section 8(a)(3) by warning her on that date 4 861 F.2d at 51 5 The Respondent argues that, even if the February 5 discipline was invalid, Chesky was discharged after three instances of valid discipline because the March 6 discipline constituted two separate violations. This agreement is plainly contrary to the court's findings of fact and we there- fore reject it. and by relying in essential part on that warning when subseqently discharging her on March 6. On the other hand, we find that the Respondent law- fully warned Starling on March 6. We agree with the judge's finding, in the deci- sion adopted in relevant part by the Board's origi- nal decision, that the February 5 conversation be- tween Chesky and patients cannot sensibly be char- acterized as a breach of the Respondent's rule against union solicitation or discussion . As noted earlier, the purpose of that rule was twofold: (1) to avoid potentially explosive encounters between strikers and nonstrikers and (2) to avoid upsetting or otherwise disrupting patients. As the incidents of February 5 involved exchanges between patients and an employee, the rule's first purpose was not involved. The other purpose of the rule must be evaluated in light of the Respondent's related policy affording discretion to employees in making tactful withdrawals from potentially upsetting dis- cussions initiated by patients . By giving brief re- sponses to the questions asked her by MacLaughlin and Rice without further attempting to prolong the conversations, Chesky conformed her conduct to the Respondent's discretionary policy. According- ly, we find from the foregoing circumstances that Chesky did not contravene the poststrike rule limit- ing union solicitation and discussion on February 5. We therefore conclude that the warning she re- ceived that day for the otherwise protected men- tion of union and strike activities violated Section 8(a)(3) and (1), as did her subsequent discharge grounded on the unlawful warning. We reach a different result, however, with re- spect to the verbal warning issued to Suzanne Star- ling on March 6. Unlike the Chesky incident, the question presented to Starling was in no way union-related, did not involve patient relations, and did not necessitate Starling's interjection, albeit in- cidental, of union matters. It was not unreasonable, therefore, for the Respondent to interpret Starling's conduct as an attempt, contrary to the February 5 rule, to engage her visiting friend in a discussion of the Union while on worktime in a patient area. In sum, we conclude that the Respondent did not vio- late the Act by warning Starling for her conduct on March 6. Accordingly, we shall enter a new Order as set out in full below, incorporating the modifications made to the judge's recommended Order in our original decision and further modifying the recom- mended Order consistent with the above discus- sion.6 ° The Board's original Decision and Order adopted without comment the judge's recommendation , also without comment, of a remedial visita- Continued CRESTFIELD CONVALESCENT HOME ORDER The National Labor Relations Board orders that the Respondent, Manchester Health Center, Inc. d/b/a Crestfield Convalescent Home/Fenwood Manor, Manchester, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Improperly applying its valid no-union- solicitation/discussion rule by warning or discharg- ing employees engaged in protected discussion of union and strike matters in a manner not proscribed by this rule. (b) Refusing to meet and/or delaying in meeting with the Union to discuss an employee grievance concerning discipline and/or discharge. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the purposes of the Act. (a) Offer Carol Chesky immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed , and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her in the manner set forth in the remedy section of the judge's decision attached to the Board's original Decision and Order. (b) Remove from its files any reference to the unlawful warning issued to Carol Chesky on Feb- ruary 5, 1986, and to her unlawful discharge on March 6, 1986; redesignate in its records Carol Chesky's lawful warning on February 10 as her first verbal warning and her lawful warning on March 6 as her first written warning ; and notify her that this has been done and that the unlawful warning and discharge will not be used against her in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment tonal clause authorizing the Board and its representatives "to obtain dis- covery from the Respondent, its officers, agents, successors and assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Proce- dure." Subsequent to the issuance of the Board 's original Decision and Order, the Board held in Cherokee Marine Terminal, 287 NLRB 1080 (1988), that it would not include visitatorial clauses on a routine basis in its remedial orders but it would "continue to grant visitatonal rights, on a case-by-case basis, when the equities demonstrate a likelihood that a re- spondent will fail to cooperate or otherwise attempt to evade compli- ance." 287 NLRB at 1083 . In the absence of any evidence indicating a likelihood in this case that the Respondent will fail to cooperate or other- wise attempt to evade compliance, we shall delete the visitatorial clause from the original Order 527 records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Manchester, Connecticut facility copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 34, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. ' 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT improperly apply our February 5, 1986 no-union-solicitation/discussion rule by warn- ing or discharging employees engaged in protected discussion of union and strike matters in a manner not proscribed by this rule. WE WILL NOT refuse to meet and/or delay in meeting with the Union to discuss an employee's grievance concerning discipline and/or discharge. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Carol Chesky immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed, and WE WILL make her whole, with interest , for any loss of earnings and other benefits resulting from her un- lawful discharge. 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL remove from our files any reference to the unlawful warning issued to Carol Chesky on February 5, 1986, and to her unlawful discharge on March 6, 1986, and WE WILL designate in our records Carol Chesky's lawful warning of Febru- ary 10, 1986, as her first verbal warning and her lawful warning of March 6, 1986, as her first writ- ten warning and WE WILL notify her that this has been done and that the unlawful warning and dis- charge will not be used against her in any way. MANCHESTER HEALTH CENTER, INC. D/B/A CRESTFIELD CONVALESCENT HOME/FENWOOD MANOR