Vencare Ancillary Services, Inc. v. N.L.R.B.
| Decision Date | 11 December 2003 |
| Docket Number | No. 01-2300.,No. 01-2165.,01-2165.,01-2300. |
| Citation | 352 F.3d 318 |
| Parties | VENCARE ANCILLARY SERVICES, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Meredith L. Jason, National Labor Relations Board, Washington, D.C., for Respondent.
ON BRIEF:
John V. Nordlund, Fairfax, California, for Petitioner.
Meredith L. Jason, Aileen A. Armstrong, Kira Vol, National Labor Relations Board, Washington, DC, for Respondent.
Before KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.*
This case presents an appeal from the Board's order finding that Petitioner — Cross-Respondent Vencare unlawfully discharged five employees for engaging in a protected activity under the National Labor Relations Act ("Act"). Petitioner argues that the Board erred in several respects, including its holding that the employees' conduct did not constitute an unprotected partial strike. We deny the enforcement of the Board's order.
Petitioner was a subsidiary of Vencor, Inc., a national health care provider based in Louisville, Kentucky that operated hospitals, skilled nursing facilities and nursing homes, including Hermitage Nursing and Rehabilitation Center ("Hermitage").1 Petitioner contracted rehabilitation services to Vencor. At all relevant times, Bryan Stuart was the on-site supervisor of Petitioner's employees at Hermitage, including physical therapists, physical therapy aides, speech and language therapists, and rehabilitation technicians. The Hermitage therapists were paid hourly wages rather than a salary, but did not punch a time clock. Instead, they each filled out a daily activity report ("DAR") each evening, describing that day's work. Petitioner calculated the therapists' pay according to the number of hours they claimed on their DARs.
On May 29, 1998, Petitioner announced wage reductions for its rehabilitation employees, effective July 1. On the same day, Stuart met with his employees to explain the wage changes. The employees, upset by the news, began discussing among themselves in early June what actions to take to reverse the decision. On Friday, June 19, a group of the rehabilitation employees met after work at Moreland Park, near Hermitage. This group included Norman deCaussin,2 Evonne Higdon, Barbara Thomas, Lisa Winkler, Nil Kanth-Bohre, and Martha Severs ("Vencare Five.")3 At the meeting, the group drafted a letter containing their demands related to the wage reductions and raising other issues, including work load and scheduling.4 The group selected deCaussin to represent them at the meeting with Stuart on June 23. DeCaussin told Stuart that the employees were going to refuse to see patients that day until someone from upper management met with them to discuss their issues. DeCaussin also said that the group would remain on the premises. Severs testified that the group informed Stuart that they "were going to ... do other work such as paper work until corporate agreed to talk to [them]."5 No one said they were on strike, nor were the terms "strike" and "work stoppage" ever used. Stuart told them he would fax the letter to Kevin Mack, his superior. He also asked the Vencare Five to continue seeing patients until he received a response from the upper management. The group refused and returned to the therapy office to do paperwork and other projects.6 At some point that morning, Thomas told Stuart that if the issue was not addressed, she would quit.7
Over the course of the morning of June 23, Stuart met individually with each employee who was refusing to see patients. He explained that their refusal to see patients was an entirely different matter from their grievance letter, and that refusing to see patients could have serious consequences for their jobs. Around noon, deCaussin told Stuart that he was not feeling well and was going to go home. He also said that if Stuart needed anything, he should call deCaussin at home. The other four employees told Stuart about the same time that they were taking "their designated lunch," but that they would return. When they returned from their lunch break, Stuart told them that he heard from management, and had been instructed to tell them to go home until further notice. The group met at 2:30 p.m. in the park to discuss whether to picket the Hermitage facility. They decided not to do so.
On June 24, they met again and drafted letters which were faxed to corporate management, in which they requested a meeting to address their grievances. On June 24, Petitioner decided to terminate the employees who refused to see patients for insubordination. Stuart called all five employees on June 24 to schedule individual meetings with them the following morning. The employees telephoned each other and agreed to meet with the management only as a group. When they arrived at Hermitage the next morning, they informed Stuart they would only meet as a group. Stuart then told all of them at once that they were being terminated for insubordination due to their refusal to see patients on June 23. Nearly eight months later, on February 12, 1999, Petitioner sent each of the five discharged therapists a paycheck for Tuesday, June 23.
This case originated with an unfair labor practice charge, filed against Petitioner by Severs on September 24, 1998. The General Counsel issued a complaint on October 30, 1998. Following a hearing, an administrative law judge dismissed the complaint on May 28, 1999.8 Petitioner and the General Counsel both excepted to the judge's decision before the Board. On August 6, 2001, the Board issued a Decision and Order reinstating the complaint, finding that Petitioner had violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)).
Under the Act, the scope of this Court's review of the Board's findings is limited. First Healthcare Corp. v. NLRB, 344 F.3d 523, 528 (6th Cir.2003). More specifically, "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. § 160(e). "Evidence is considered substantial if it is adequate, in a reasonable mind, to uphold the decision." Turn-bull Cone Baking Co. of Tennessee v. NLRB, 778 F.2d 292, 295 (6th Cir.1985) (per curiam)(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Although this Court "should consider the evidence contrary to the Board's conclusions," it "may not conduct a de novo review of the record." Id. (citing Union Carbide Corp. v. NLRB, 714 F.2d 657, 660 (6th Cir.1983)). "When there is a conflict in the testimony, `it is the Board's function to resolve questions of fact and credibility,' and thus this court ordinarily will not disturb credibility evaluations by an ALJ who observed the witnesses' demeanor." Id. (quoting NLRB v. Baja's Place, 733 F.2d 416, 421 (6th Cir.1984)). "The Board's application of the law to particular facts is also reviewed under the substantial evidence standard..." Id. (citations omitted). However, "[i]f the Board errs in determining the proper legal standard, the appellate court may refuse enforcement on the grounds that the order has `no reasonable basis in law.'" Id. (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979)).
On appeal, Petitioner argues that the refusal by the Vencare Five to see patients was unprotected by the Act for two reasons: (1) it was a partial strike; and (2) the group failed to give advance notice of the work stoppage, as required of employees at a health care institution by Section 8(g) of the Act. Petitioner further argues that since the work stoppage was unprotected, it was lawful for it to terminate the employees for their refusal to see patients. Respondent argues that substantial evidence supports the Board's finding that the work stoppage was protected. We find that the employees engaged in an unprotected partial strike and that their discharge was lawful.9 Therefore, we do not reach the question of whether the Vencare Five constituted a labor organization that was required to give a 10 day notice before striking a health care employer.
Section 7 of the Act protects "not only concerted activity under the sanction of a labor union, but also concerted activity of the same nature engaged in by unorganized employees." Vic Tanny Int'l, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir.1980). However, "not ... all work stoppages are federally protected concerted activities." Auto Workers Local 232 v. Wisconsin Employment Relations Bd., 336 U.S. 245, 255, 69 S.Ct. 516, 93 L.Ed. 651 (1949), overruled on other grounds by Lodge 76, Int'l Ass'n of Machinists & Aerospace Workers v. Wisconsin Employment Relations Comission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). While employees may strike to "protest and seek to change any term or condition of their employment," thus assuming the risk of losing their jobs, they may not strike and retain the benefits of working at the same time. First Nat'l Bank of Omaha, 171 N.L.R.B. 1145, 1151, 1968 WL 19259 (1968), enforced, 413 F.2d 921 (8th Cir.1969). Partial strikes, where employees continue working on their own terms, are therefore unprotected by Section 7 of the Act. Id. at 1149-51; Valley City Furniture, 110 N.L.R.B. 1589, 1594, 1954 WL 13146 (1954), enforced, 230 F.2d 947 (6th Cir.1956). Employees, thus, may not "refuse to work on certain assigned tasks while accepting pay or while remaining on the employer's premises." Audubon Health Care Ctr. v. United Labor Unions, Local 100, 268 N.L.R.B. 135, 136, 1983 WL 24712 (1983) (...
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