Yesterday's Children, Inc. v. N.L.R.B.

• Decision Date: 03 February 1997
• Docket Number: No. 96-1826,96-1826
• Citation: 115 F.3d 36
• Parties: 155 L.R.R.M. (BNA) 2385, 133 Lab.Cas. P 11,828 YESTERDAY'S CHILDREN, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 36

115 F.3d 36

155 L.R.R.M. (BNA) 2385, 133 Lab.Cas. P 11,828

YESTERDAY'S CHILDREN, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 96-1826.

United States Court of Appeals First Circuit.

Heard Feb. 3, 1997.

Decided May 30, 1997.

Clare Hudson Payne, with whom Eaton, Peabody, Bradford & Veague, P.A., Bangor, ME, was on brief, for petitioner.

David B. Schwartz, with whom Frederick C. Havard, Supervisory Attorney, Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief, for respondent.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

The National Labor Relations Board filed a host of unfair labor practice charges under § 8 of the National Labor Relations Act, 29 U.S.C. § 158, against Yesterday's Children. Yesterday's Children is a non-profit corporation which operates, among other facilities, Agape House, ¹ a 20-bed residential nursing home for mentally retarded adults in Ellsworth, Maine. Evidence was heard in October 1993 by an Administrative Law Judge, who recommended dismissal of all the charges, based in part on his credibility determinations after observing the witnesses. His decision was reviewed by a three-member panel of the NLRB.

The case comes here with only two of the various charges still at issue: charges relating to disciplinary actions taken against two employees, nursing assistant Laura Cunningham and charge nurse Jean Smith. As to these two charges, the Board reversed the ALJ and found that the employer's actions were illegal because the conduct of the two employees was protected by § 7 of the Act, 29 U.S.C. § 157. Cunningham had been issued a written reprimand for "conduct unbecoming" after calling a co-worker to enlist her support in a letter-writing campaign to the employer in support of a recently discharged supervisor. Smith had been issued two written reprimands and then discharged, purportedly for her role in two incidents involving patient care.

The Board ordered reinstatement and back pay for Smith and ordered the removal of the reprimands of both Smith and Cunningham from the employer's files. Yesterday's Children petitions this court for review, and the General Counsel cross-petitions, seeking enforcement of the Board order. We enforce the Smith order, but vacate the Cunningham order and remand that portion of the case to the Board for further consideration.

I.

The facts are now largely undisputed. During the first half of 1992 Laura Cunningham was a nursing assistant at Agape House, and Smith was a charge nurse ² there. Cunningham had been working at Agape House since 1988, and Smith since 1985. In January 1992, Jeffrey Cake was hired as the Executive Director of Yesterday's Children and the Administrator of Agape House.

In mid-June 1992, Cunningham and Smith attempted to start a letter-writing campaign to the employer's Board of Directors in support of the recently discharged Glenda Leavitt. Leavitt is alternately described in the record as the "Program Director" at Agape House and the "Qualified Mental Retardation Professional" ("QMRP") at Agape House. ³ Leavitt had been fired by Cake on June 11, after a series of letters from state authorities led Cake to conclude that Leavitt did not have the required professional qualifications for the position. At the time of the campaign, Leavitt was appealing her dismissal to Yesterday's Children's Board of Directors.

On June 13, Cunningham called Lucinda Sargent, another nursing assistant, at home from a nursing station telephone to try to enlist Sargent's support in the letter-writing campaign. Resolving a factual dispute between Cunningham and Sargent, the ALJ determined that Cunningham made the call during her work shift. The Board did not question this finding. Cunningham made several derogatory remarks about Cake in the course of this telephone conversation, referring to him as an "asshole," and saying that she would like to "get rid of" him.

Sargent complained to her supervisor, Gayle Haslam, about the call. Haslam reported the incident to Cake, who wrote a letter to Cunningham stating that her call to Sargent "during regular working hours" was, if the facts as reported to him were accurate, "just cause for dismissal." Cake then met personally with Cunningham to discuss the incident, and concluded that Cunningham's effort was directed not at supporting Leavitt, but at getting him (Cake) fired.

A few days later, Cake sent Cunningham a second letter which constituted a "formal reprimand" for "conduct unbecoming." On a contemporaneous "employee counseling form," Cake noted that he had reprimanded Cunningham for "using agency resources and time to agitate against the actions of the administration including attempts to place undue stress on other staff while on duty." Cunningham was not fired. ⁴

The conflicts between Cake and Smith ran deeper. Almost immediately upon Cake's arrival at Yesterday's Children, the two were at odds. The ALJ traced this enmity to January 1992, when a group of employees submitted to Cake a letter requesting the reinstatement of Liz Martin, an employee Cake had fired. Smith's name led the list of signatories. ⁵ Then, in early February, Smith angrily confronted Cake, in front of another employee, over a memo he had issued to employees stating that he intended to withhold paychecks for a week to enable the corporation to ride out a cash flow crisis. Cake issued Smith an official letter of reprimand after this incident, which he later withdrew after Smith explained her views to him in greater detail.

In June, Cake discharged Leavitt, and Smith was among the employees who supported Leavitt's bid for reinstatement. Smith and Cunningham initiated a letter-writing campaign on Leavitt's behalf. Additionally, on July 12, Smith and Leavitt met with representatives of the Office & Professional Employees International Union regarding organizing the facility. Then, on July 14, Smith read a prepared letter in support of Leavitt to the employer's Board of Directors, which was meeting at a local hotel to hear Leavitt's appeal of her termination. ⁶ Smith's statement included sharp criticism of Cake. After discussing the circumstances of Leavitt's dismissal by Cake, for instance, Smith claimed "no professionalism was exhibited." She stated that Cake "has managed to frighten [the staff] into submission and silence by threatening them with lawsuits and their jobs." Smith also criticized Cake's budget-cutting decisions, which, she claimed, had caused a deterioration in the physical appearance of Agape House, posing health hazards to the residents. During the meeting, the Union distributed flyers outside on the street.

Smith was also involved in two patient care incidents in July 1992. One was denominated the "choking incident." On July 10, Smith was at the nursing station talking with Dale Zebulske, Leavitt's replacement as QMRP, when they heard a brief scuffle a short distance away. After peering down the hall, Smith said to Zebulske, whose back was to the incident, "Patient ___ is choking patient ___." Smith claims to have been joking and claims that there had been no choking at all. Zebulske, however, did not realize she was joking. Later that day, Zebulske happened to be on the phone with the mother of the resident he thought was the victim of the choking attack. Though it was apparently against Agape House policy, ⁷ he mentioned the incident to the mother, who later complained to state authorities. Although Smith would be required to write up an "incident report" in the event of an incident like the one Zebulske believed occurred, she did not do so (because, according to her, there had been no incident).

On July 16, at the request of Joan Abbott, the acting Director of Nursing, ⁸ Smith wrote an explanation of the phantom incident; she said that she had simply remarked to Zebulske that it "looked like" one of the residents was "going to choke" the other, but that she had no idea that Zebulske understood her to be saying that a choking attempt had in fact been made. (Later, at the hearing, Smith testified that she had been joking and that she had not realized that Zebulske was taking her seriously.) On July 21, Goss verbally counseled Smith for her "poor judgment" and issued a written confirmation of the counseling. Cake signed off on this written confirmation.

The second patient care episode was denominated the "sunburn incident." On July 16, a resident returned from an outing with a serious sunburn on his shoulder. Verna Chick, a staff member who had been on the outing, reported the sunburn to Cake and to Smith, who was the charge nurse on duty at the time. As required, Chick wrote up an "incident report."

Smith applied another resident's prescription Silvadene ointment to the sunburn. ⁹ Smith noted this treatment on Chick's incident report, and also made a notation in the "24-hour notebook," a notebook in which nurses on different shifts communicate with each other concerning patient matters. She did not, however, record the incident in the "medical logbook" (the book in which individualized records concerning each resident are kept) and did not enter it into the "nursing notes" (the formal record of nursing actions). ¹⁰ These were both violations of policy.

Later, Smith told Ben Starbuck, the charge nurse in the next shift (the overnight shift), about the sunburn. Starbuck checked the resident's sunburn while the resident slept but took no other action. Starbuck, in turn, claims that he informed Virginia Conklin, the charge nurse who took over in the morning, about the sunburn. Conklin later told Cake she had not been informed of the sunburn, but at the hearing admitted that she had been told. Some time the next morning, during Conklin's shift, nursing assistant Sargent (the nursing...