United States Court of Appeals
For the First Circuit
____________________
No. 96-1826
YESTERDAY'S CHILDREN, INC.,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner.
____________________
PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
____________________
Before
Boudin, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Clare Hudson Payne, with whom Eaton, Peabody, Bradford & ___________________ ___________________________
Veague, P.A. was on brief, for petitioner. ____________
David B. Schwartz, Attorney, 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.
____________________
May 30, 1997
____________________
LYNCH, Circuit Judge. The National Labor Relations LYNCH, Circuit Judge. _____________
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
____________________
1. During this litigation, the facility's name was changed
from Agape House to Birchwood Living Center.
-2- 2
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 nurse2 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
____________________
2. The record does not reveal the specific duties and
responsibilities of charge nurses at Agape House. It appears
that the charge nurse is the head nurse on a given shift,
that is, the person at the facility who is primarily
responsible for the medical care of the residents.
-3- 3
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.
____________________
3. Whatever her title, the record reflects that Leavitt was
in charge of the implementation and development of active
treatment services for the residents. It was her
responsibility to assess, evaluate, and make recommendations
to an interdisciplinary team of employees on goals and
objectives for the residents and to monitor and review those
plans as they were implemented. She was also involved in
employee scheduling.
-4- 4
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
____________________
4. A second unfair labor practice charge regarding
Cunningham involved an alleged "interrogation" of Cunningham
by Cake in response to rumors of a strike in protest of the
firing of Leavitt. Cunningham claimed that Cake threatened
to fire any employee who walked out, but the ALJ credited
Cake's corroborated testimony that he made no such threat.
The Board upheld the ALJ's dismissal of this charge, and the
General Counsel does not press this claim on appeal.
-5- 5
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
____________________
5. Cunningham also signed this letter, a fact noted by
neither the ALJ nor the Board. In addition, thirty-one other
employees signed the letter.
6. This appeal was ultimately denied.
-6- 6
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
____________________
7. No explicit findings were made on this point, but the
Board apparently credited Smith's undisputed testimony that
Yesterday's Children policy prohibited anyone other than the
staff social worker, Philip Hurley, from contacting
residents' parents about incidents like the one Zebulske
thought had occurred.
-7- 7
be required to write up an "incident report" in the event of
an incident like the one Zebulske believed occurred, she did
not doso (because,according toher, therehad beenno 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."
____________________
8. Abbott, a nurse at Agape House, was filling in
temporarily for Betty Goss, the facility's Director of
Nursing, while Goss was on vacation.
-8- 8
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
____________________
9. The state investigators, who came in later, erroneously
concluded that the resident's sunburn went untreated for
sixteen hours. Both the ALJ and the Board found that Smith
had in fact promptly treated the sunburn with Silvadene.
10. After receiving a written reprimand about the sunburn
incident, however (see below), Smith was advised by one of
the state investigators to prepare a late entry in the
nursing notes stating that she had applied Silvadene ointment
to the sunburn. She did this.
-9- 9
(the nursing assistant whom Cunningham had called about
Leavitt) allowed the sunburned resident to get into a hot
whirlpool bath, which caused extreme blistering of the
sunburn. Sargent, who claims that she had not known about
the sunburn, told Conklin about the problem. Conklin then
went to Cake, at which time Conklin denied having been
informed about the sunburn. Conklin then arranged for a
prescription of Silvadene ointment for the resident.
On July 27, three inspectors from the State
Department of Human Services, which had received anonymous
complaints about Agape House, showed up unannounced at the
facility to investigate, inter alia, the two incidents. At _____ ____
the end of their visit, the state investigators gave Goss a
hand-written list of deficiencies. Several shortcomings were
noted, including the sunburn incident (but not the choking
incident). The listed deficiencies were: (1) failure
properly to treat a resident for an ear infection; (2)
treatment of a resident with a psychotropic drug without the
consent of his guardian; (3) failure to establish proper
procedures for the use of two psychotropic drugs; and (4)
failure to treat a sunburn for sixteen hours. An official
letter of violation followed on August 19, materially
identical to the July 27 hand-written list.
On July 28, Smith, along with fifteen other
employees, attended a Union organizing meeting and signed an
-10- 10
authorization card. The next day, Goss told Cake about the
meeting, but it is unclear from the record whether she told
him, or he otherwise discovered, that Smith was among the
employees who had attended the meeting.
On August 4, Goss issued Smith two separate written
reprimands for her role in the sunburn incident and the
choking incident. The choking incident reprimand stated that
James Barnes, one of the state inspectors, "was very
concerned about the issue of your judgement [sic] and not
satisfied with the administrators [sic] recommendations of
counseling." However, Barnes testified before the ALJ and
denied having ever expressed any such dissatisfaction. The
sunburn incident reprimand stated that Smith's "failure to
note [the sunburn] within [the patient's] medical records or
examine him carefully, resulted in his being placed in the
whirlpool . . . ." The letter went on to state that Smith
"failed to properly act, both in terms of record keeping and
in terms of making recommendations to the nurse assuming duty
after [her] shift."
On August 10, Smith was fired. The discharge
letter from Cake cited her conduct in the sunburn and choking
incidents and her lack of "consistent good judgment."
Smith's appeal of her termination to the board of directors
was denied.
II.
-11- 11
Because the employer asserts that there is not
substantial evidence supporting the Board's unfair labor
practice determinations, and because the Board and the ALJ
reached contrary conclusions, it is helpful to understand the
opinions of the Board and of the ALJ.
Cunningham __________
The ALJ found that Cake "honestly" believed that
Cunningham, in calling Sargent, was agitating for his
dismissal. This aspect of the call, said the ALJ, was what
"bothered Cake the most." The ALJ found that the phone call
"was clearly divorced . . . from any activity under the Act"
both because it was made on company time using company
resources (the nursing station phone) and because of
Cunningham's derogatory remarks about Cake. Hence, the
letter of reprimand from Cake, concluded the ALJ, though it
"may have not been completely appropriate," was "not
unlawful."
On appeal, the Board, without analyzing whether
Cunningham's call was protected by 7,11 ruled that it did
____________________
11. Section 7 provides, in relevant part, that:
Employees shall have the right to
self-organization, to form, join, or
assist labor organizations, to bargain
collectively through representatives of
their own choosing, and to engage in
other concerted activities for the
purpose of collective bargaining or other
mutual aid and protection . . . .
29 U.S.C. 157.
-12- 12
not lose the protection of the Act because it was made on
company time or because of the derogatory remarks. The Board
reversed the ALJ, finding that the employer violated
8(a)(1).12
The remarks about Cake, said the Board, were "not
so egregious as to cause her to lose the protection of the
Act." The prime focus of Cunningham's efforts, reasoned the
Board, was not to get Cake fired but was to get Leavitt
reinstated, adding:
[E]mployees who are engaged in Section 7
activity in protest of actions by their
employer do not lose the protection of
the Act simply because they mention that
they dislike an employer manager and
would like to see the manager discharged.
The Board stressed that there is no evidence that Cunningham
took any affirmative steps to get Cake fired.
Without discussing whether an employee's use of
company time and company resources to engage in the kind of
activity at issue here might justify a reprimand, the Board
stated that the employer had failed to establish that it
disciplined Cunningham for this reason. The disciplinary
action, said the Board, was in response to the offensive
remarks, not to Cunningham's use of company resources, and,
on these facts, this was impermissible.
____________________
12. Section 8(a)(1) provides: "It shall be an unfair labor
practice for an employer to interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in
[ 7]." 29 U.S.C. 158(a)(1).
-13- 13
Smith _____
The Board's General Counsel asserted that Smith was
fired for her engagement in activities protected under 7 of
the Act. In contrast, the employer argued that she was fired
for her poor judgment and breach of proper protocol. The ALJ
employed the Wright Line burden-shifting paradigm in his ____________
analysis. See Wright Line, 251 N.L.R.B. 1083 (1980), ___ ____________
enforced, 662 F.2d 899 (1st Cir. 1981). He found that the ________
General Counsel had failed to "make a prima facie showing
sufficient to support the inference that conduct protected
under the Act was a motivating factor" in Smith's reprimands
and discharge. The ALJ found that "Smith's actions in the
'choking' and 'sunburn' incidents did prompt, in part the
state investigation" and that this, "together with Cake's
personal dislike for Smith," resulted in the reprimands and
termination. Thus, the burden never shifted to the employer
to show that the punishment would have occurred even in the
absence of protected conduct and the analysis ended there.
The ALJ concluded that there was no unfair labor practice.
The Board, on appeal, reversed, finding a violation
of 8(a)(1) under the same Wright Line burden-shifting ____________
analysis. The elements necessary to make out a prima facie
case, stated the Board, are "protected activity, knowledge,
timing, and animus." The Board said that all these elements
were met here. Smith engaged in a variety of protected
-14- 14
activities; the employer knew about her engagement in these
activities; her reprimands and her termination were in "close
proximity" to the employer's learning about her protected
activities; and the employer's animus "toward Smith's
protected activities in particular, and its employees'
protected activities in general, is clear."
The Board agreed with the ALJ that Cake had acted
out of a personal dislike for Smith, but disagreed about the
import of this fact:
Cake's dislike of Smith arose initially
from Cake's resentment of Smith's
protected activities. . . . Thus, as
Cake's dislike began from animosity over
protected activity, we infer that this
"dislike" was a product of animus toward
Smith's protected activity.
Thus, the Board found that the General Counsel successfully
made out his prima facie case.
The burden then shifted, on the Board's analysis,
to Yesterday's Children to show that it would have
disciplined and discharged Smith even if she had not engaged
in protected activities. The Board found that the employer's
proffered explanation -- that Smith failed to show
"'consistent good judgment in [her] duties and
responsibilities' with respect to the 'sunburn' and choking'
incidents" -- was pretextual, and that the employer had
"failed to show that it would have taken the same action in
the absence of Smith's protected activity."
-15- 15
With regard to the "choking incident," the Board
noted that Zebulske, who violated company policy by informing
the resident's mother about the phantom incident, was at
least equally responsible for the state investigation, and
yet was not disciplined at all. Additionally, the August 4
reprimand from Goss explained, in light of the fact that
Smith had already been scolded on July 21 for her role in the
incident, that further reproach was in order because Barnes,
one of the state investigators, was concerned about the issue
of Smith's judgment and dissatisfied with the leniency of the
counseling. Barnes, however, testified at the hearing that
he had stated no such concern or dissatisfaction.
Regarding the "sunburn incident," the Board
challenged Cake's explanation that Goss issued the reprimand
to Smith on August 4 based on the state investigators'
report, which found that Smith had engaged in "abuse" by
neglecting to treat the resident's sunburn. The Board, in
discrediting this explanation, noted that the report did not
issue until August 19, after the reprimand and after the
discharge.13 Additionally, while the state investigators'
____________________
13. The Board misread the record. The state investigators,
on the day of their investigation, July 27, gave Cake a hand-
written list of deficiencies, which foreshadowed their formal
findings. The sunburn incident was listed among the
deficiencies on this note: "Client suffered a sunburn
resulting in blisters on left shoulder and not treated for
over 16 hours." The formal letter, dated August 19,
reiterated: "[C]lient sustained a sunburn on 7/16/92, while
at day program, which resulted in blisters to his left
-16- 16
report referenced by Goss's letter of reprimand listed
various deficiencies at Agape House, the Board noted that
only Smith was disciplined in response to these deficiencies.
In conclusion, the Board said:
[H]aving found that the General Counsel
established a prima facie case warranting
an inference that Smith was reprimanded
and subsequently discharged for her
protected concerted activity, and having
found that [Yesterday's Children's]
explanations for its actions were
pretextual and that the actual reason for
Smith's reprimands and discharge were her
protected concerted activities, we
conclude that [Yesterday's Children]
violated Section 8(a)(1) by reprimanding
and subsequently discharging Smith.
III.
Our standard of review for decisions of the Board
is a deferential one. "As the Board is primarily responsible
for developing and applying a coherent national labor policy,
we accord its decisions considerable deference." NLRB v. ____
Boston Dist. Council of Carpenters, 80 F.3d 662, 665 (1st ____________________________________
Cir. 1996) (internal citation omitted). We may not
substitute our judgment for the Board's when the choice is
____________________
shoulder. The physician was not notified and treatment was
not administered until 7/17/92." The criticisms in the two
writings are fundamentally the same; the formal letter
contained no new details. The Board therefore erred in
determining that the employer could not have relied on the
state investigators' findings on August 4 and August 10.
The investigators' citation erroneously stated that
Smith failed to treat the sunburn. In fact, she did treat
it, but with another resident's prescription ointment. In
either event, she violated nursing policy.
-17- 17
"between two fairly conflicting views, even though the court
would justifiably have made a different choice had the matter
been before it de novo." Universal Camera Corp. v. NLRB, 340 ______________________ ____
U.S. 474, 488 (1951). This is not to say, however, that we
simply "rubber stamp" the decisions of the Board. See Kelley ___ ______
v. NLRB, 79 F.3d 1238, 1244 (1st Cir. 1996). We enforce a ____
Board order only if the Board correctly applied the law and
if its factual findings are supported by substantial evidence
on the record. Acme Tile & Terrazzo Co. v. NLRB, 87 F.3d __________________________ ____
558, 560 (1st Cir. 1996); Boston Dist. Council of Carpenters, __________________________________
80 F.3d at 665; see N.L.R.A. 10(e), 29 U.S.C. 160(e). ___
We address separately the Board's two findings of
unfair labor practices.
Cunningham __________
There can, of course, be no violation of 8(a)(1)
by the employer if there is no underlying 7 conduct by the
employee. Conduct must be both concerted and protected to
fall within 7. In finding a 8(a)(1) violation, however,
neither the Board nor the ALJ analyzed the issue, a close one
in this case, of whether Cunningham's concerted activity was
protected by 7. This compels a remand to the Board for
further consideration.
The ALJ found that:
Cunningham's phone call to Sargent was
improper because it was a personal call
made during working time from the nursing
station phone, rather than the employee's
-18- 18
phone. But what bothered Cake the most,
understandably, was the derogatory
remarks made about him . . . . That part
of Cunningham's call to Sargent regarding
support for Leavitt could be considered
protected concerted activity, if taken
alone, but other aspects of the call
(which bothered Cake the most) clearly
divorced the call from any activity
protected under the Act.
The Board, in reversing the ALJ and finding a
violation of 8(a)(1), misinterpreted the ALJ's reasoning
and in so doing "glossed over the analytically tough question
presented here." NLRB v. Auciello Iron Works, Inc., 980 F.2d ____ _________________________
804, 811 (1st Cir. 1992). The Board stated that the ALJ
"found that Cunningham's efforts on behalf of Leavitt were
concerted and protected," but that
[c]ontrary to the [ALJ], we do not find
that Cunningham's activities lost the
protection of the Act either because (1)
the conversation contained derogatory
remarks about Cake, or (2) the
conversation alluded to the discharge of
Cake, or (3) the telephone call was made
during working time from the nursing
station.
The difficulty with the Board's position is that the ALJ did
not find that Cunningham's action was protected; he simply ___
posited that even if her act were protected it would lose its ____ __
protection because of the manner in which she acted.
The end result is that neither the ALJ nor the
Board addressed the basic legal issue underlying whether
Cunningham's phone call was protected by 7: Leavitt's
-19- 19
undisputed status as a "supervisor"14 and the special
standards under 7 pertaining to employee protests of the
employer's supervisor-related actions.
The General Counsel argues that the Board properly
understood the ALJ's analysis. This assertion is undermined,
however, by the ALJ's failure even to mention Leavitt's
status as a supervisor, let alone that such status was
relevant to the 7 inquiry. The ALJ, on our reading of his
decision, did not find that Cunningham's call was protected
by the Act, and the Board erred in concluding that the
conduct was protected without undertaking the appropriate
legal analysis. The correct analysis, as both parties
implicitly recognized, must begin with the fact that Leavitt
was a "supervisor" for purposes of the Act, see N.L.R.A. ___
2(11), 29 U.S.C. 152(11), and that Cunningham's phone
call was at best an employee protest about a supervisory
staffing matter.
It is fundamental to the structure of the Act that
"not all forms of employee protest over supervisory changes
are per se protected." Puerto Rico Food Prods. Corp. v. _______________________________
NLRB, 619 F.2d 153, 155 (1st Cir. 1980); Abilities & Goodwill ____ ____________________
Inc. v. NLRB, 612 F.2d 6, 8-10 (1st Cir. 1979); see also NLRB ____ ____ ___ ____ ____
v. Sheraton Puerto Rico Corp., 651 F.2d 49, 51 (1st Cir. ___________________________
____________________
14. The General Counsel concedes this point. Additionally,
Zebulske, Leavitt's replacement as QMRP, is clearly viewed by
the General Counsel as a member of management.
-20- 20
1981) ("[W]hen non-supervisory employees engage in activity
directly related to the retention of supervisors . . . the
Board must proceed with caution."). Section 7 shields
employees from hostile employers when the employees seek,
through union membership or otherwise, to band together for
the purpose of "mutual aid or protection." The guiding
policy behind 7 is not implicated when supervisors, who are
management's "faithful agents," are the ones concertedly
agitating against the employer's actions. Sheraton Puerto _______________
Rico, 651 F.2d at 51 (quoting H.R. Rep No. 245, 80th Cong., ____
1st Sess. 16-17 (1947)); see N.L.R.A. 2(3), (11). And, ___
similarly, the policy is not clearly implicated when non-
supervisory employee concerted activity concerns supervisory
staffing matters. "Traditionally, the interest of the
employer in selecting its own management team has been
recognized and insulated from protected employee activity."
Abilities & Goodwill, 612 F.2d at 8; see also NLRB v. Oakes ____________________ ___ ____ ____ _____
Mach. Corp., 897 F.2d 84, 89 (2d Cir. 1990) ("Employee action ___________
seeking to influence the identity of management hierarchy is
normally unprotected activity because it lies outside the
sphere of legitimate employee interest.").
We have held that two basic criteria must be met
for employee concerted action regarding supervisory staffing
matters to gain the protection of 7. Puerto Rico Food _________________
Prods., 619 F.2d at 155; Abilities & Goodwill, 612 F.2d at 8- ______ ____________________
-21- 21
10. "First, the employee protest over a change in
supervisory personnel must in fact be a protest over the
actual conditions of their employment," and second, "the
means of protest must be reasonable." Puerto Rico Food _________________
Prods., 619F.2d at155-56 (internal quotationmarks omitted).15 ______
Because the Board did not analyze this key issue,
we vacate the Cunningham order and remand to the Board for
further consideration. See NLRB v. Acme Tile & Terrazzo Co., ___ ____ ________________________
984 F.2d 555, 555 (1st Cir. 1993) (per curiam); see also Acme ___ ____ ____
Tile & Terrazzo, 87 F.3d at 560; cf. NLRB v. Food Store ________________ ___ ____ ___________
Employees Union, 417 U.S. 1, 9-10 (1974); Sullivan Bros. ________________ _______________
Printers, Inc. v. NLRB, 99 F.3d 1217, 1231 (1st Cir. 1996). ______________ ____
"[T]the task of defining the scope of 7 is for
the Board to perform in the first instance as it considers
the wide variety of cases that come before it." NLRB v. City ____ ____
Disposal Sys., Inc., 465 U.S. 822, 829 (1984) (internal _____________________
____________________
15. This test, which traces back at least half a century,
has been fashioned through an interplay between the Board and
the courts of appeals. See, e.g., Phoenix Mut. Life Ins. ___ ____ ________________________
Co., 73 N.L.R.B. 1463 (1947), enforced, 167 F.2d 983 (7th ___ ________
Cir. 1948); Guernsey-Muskingum Elec. Coop., Inc., 124 ________________________________________
N.L.R.B. 818 (1959), enforced, 285 F.2d 8 (6th Cir. 1960); ________
Dobbs Houses, Inc., 135 N.L.R.B. 885 (1962), enforcement ___________________ ___________
denied, 325 F.2d 531 (5th Cir. 1963) (enforcement denied ______
because employee acts in support of discharged supervisor not
"reasonable"); Abilities & Goodwill, Inc., 241 N.L.R.B. 27, ___________________________
enforcement denied, 612 F.2d 6 (1st Cir. 1979) (employee acts __________________
not reasonable due to lack of nexus between dispute and means
of protest); Oakes Machine Corp., 288 N.L.R.B. 456 (1988), ____________________
enforced in relevant part, 897 F.2d 84 (2d Cir. 1990). The __________________________
Board is not free to ignore its own precedent. Auciello, 980 ________
F.2d at 812.
-22- 22
quotation marks omitted). But "[a] court may require that
the Board's decision 'be supported by articulate, cogent, and
reliable analysis.'" Auciello Iron Works, 980 F.2d at 813 ____________________
(quoting Northport Health Servs., Inc. v. NLRB, 961 F.2d _______________________________ ____
1547, 1553-54 (11th Cir. 1992)). If the Board believes that
Cunningham's call to Sargent in support of Leavitt was
protected by 7, it should explain its reasoning. See ___
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, ____________________________ _____________
167-68 (1962). In particular, the Board should explain how
Leavitt's termination relates to the non-supervisory
employees' working conditions.
Of course, every dispute over
managerial employees involves working
conditions to some degree; after all, the
jobs of many managers in large part
involve creating and maintaining such
conditions. Yet . . . there must be a
somewhat more direct relationship than
this to the concerns of ordinary workers
before concerted action aimed at the
choice of managers enjoys the Act's
protection.
Sheraton Puerto Rico, 651 F.2d at 53; see also Puerto Rico _____________________ ___ ____ ___________
Food Prods., 619 F.2d at 156-57. ___________
We do not reach the issue -- about which the ALJ
and the Board are in apparent disagreement -- of whether
Cunningham's conduct, if initially protected, would be
stripped of its protection because of her derogatory comments
about Cake and/or the fact that she made the call during her
working shift from a company phone. We note only that, as a
-23- 23
conceptual matter, an employee's act or course of conduct
certainly could lose the protection it would otherwise have
enjoyed under 7 because of the "abusive manner" in which
the employee behaved. City Disposal Sys., 465 U.S. at 837; __________________
El Gran Combo de Puerto Rico v. NLRB, 853 F.2d 996, 1006 (1st ____________________________ ____
Cir. 1988); Keosaian v. NLRB, 630 F.2d 36, 38 (1st Cir. 1980) ________ ____
(per curiam).
Smith _____
1. Motion to Amend Pleadings _____________________________
We address first a threshold issue in the Smith
claim. Yesterday's Children asks that the Smith case be
remanded to the Board with instructions to allow Yesterday's
Children to raise the argument, not made before the ALJ or
the Board, that Smith is a "supervisor" under the Act, see ___
N.L.R.A. 2(11), instead of an "employee," see N.L.R.A. ___
2(3), and that as such she lacks the protections accorded
employees under 7. See generally Sheraton Puerto Rico, ___ _________ ____________________
651 F.2d 49. The Smith claim, if this argument were to carry
the day, would fail ab initio. _________
Yesterday's Children attempted to raise this
argument before the ALJ, but failed due to procedural
default. It now argues that the ALJ erred in denying its
post-hearing motion to amend its answer, and that the Board
erred in upholding this erroneous ruling. We review a denial
of a motion to amend the pleadings for abuse of discretion.
-24- 24
Golas v. HomeView, Inc., 106 F.3d 1, 3 (1st Cir. 1997); Reid _____ ______________ ____
v. New Hampshire, 56 F.3d 332, 342 (1st Cir. 1995); see also ______________ ___ ____
Carlo v. Reed Rolled Thread Die Co., 49 F.3d 790, 792 (1st _____ ___________________________
Cir. 1995).
We place the matter in context. Yesterday's
Children moved, almost two years into the litigation, to
amend its answer in order to deny that Smith is an
"employee." Relying on an intervening Supreme Court
decision, NLRB v. Health Care & Retirement Corporation of ____ _________________________________________
America, 114 S. Ct. 1778 (1994), Yesterday's Children sought _______
to assert the affirmative defense that Smith, as a charge
nurse, is a "supervisor."
There were, at the time, various NLRB proceedings
occurring simultaneously involving this employer. One of
these proceedings (RC-19849) involved the certification of a
claimed bargaining unit which included the facility's charge
nurses. In this proceeding, the employer took the position
that the charge nurses were supervisors under the Act, rather
than employees. But the Regional Director, to whom the NLRB
had delegated its authority pursuant to 3(b) of the Act, 29
U.S.C. 153(b), found to the contrary on September 29, 1992.
The employer petitioned the NLRB for review of this decision.
In light of the adverse ruling in the certification
case, but before the NLRB had yet acted on the request for
review, the employer chose not to deny that Smith was an
-25- 25
employee in its November 19, 1992 answer to the complaint in
this unfair labor practice case. Shortly thereafter, on
December 14, 1992, the NLRB turned down the employer's
request for review of the Regional Director's finding in the
certification case. The ALJ conducted the three-day hearing
in this unfair labor practice case in early October 1993.
Then, before the ALJ issued his decision, the Supreme Court
decided Health Care on May 23, 1994, after which the employer ___________
sought to amend its answer on June 22. The ALJ, in a
footnote to its written opinion in this case, issued eight
days later on June 30, denied the motion without explanation,
and the Board affirmed the denial on untimeliness grounds.
In defense of this ruling, the General Counsel
cites the basic proposition that "an intervening court
decision that suggests a new and previously unmade argument
to a respondent is not a circumstance that excuses a failure
to raise the argument before an administrative agency at the
time appropriate under the agency's practice." True
enough,16 but at the same time it is not entirely fair to
characterize the employer's argument here as "new and
____________________
16. See, e.g., United States v. L.A. Tucker Truck Lines, ___ ____ ______________ _________________________
Inc., 344 U.S. 33, 36-37 (1952); NLRB v. International Health ____ ____ ____________________
Care, Inc., 898 F.2d 501, 507 (6th Cir. 1990); Szewczuga v. __________ _________
NLRB, 686 F.2d 962, 971 (D.C. Cir. 1982). But see Sure-Tan, ____ ________ _________
Inc. v. NLRB, 467 U.S. 883, 896 n.7 (1984) (deeming ____ ____
"substantial change in controlling [case] law" an
"extraordinary circumstance," and thus allowing employer to
raise a new argument not raised before the Board).
-26- 26
previously unmade." The broader reality is that this same
respondent had unsuccessfully raised an identical argument in
a recent and related case before the same administrative
body.
Still, while the issue is a close one, the denial
of the motion was not an abuse of discretion. Significantly,
the NLRB had not yet ruled, at the time of the employer's
initial filing of its answer in this case, on the employer's
petition for review of the Regional Director's earlier ruling
on the charge nurses' non-supervisory status. The fact that
the employer itself had sought review of the Regional
Director's decision, and that this request was pending at the
time the answer here was filed, shows that the employer did
not regard the Regional Director's decision as a final agency
determination. The employer should have preserved the
argument in this case by raising it in the pleadings.
2. Merits __________
Both the ALJ and the Board assumed without inquiry,
for the purpose of the Wright Line analysis, that Smith had ___________
engaged in a range of protected activities before being
disciplined by the employer: Smith's signing a letter to
Cake seeking the reinstatement of a co-worker, Liz Martin;
her confrontation with Cake over Cake's decision to withhold
employee paychecks; her initiation of the Leavitt letter-
-27- 27
writing campaign; her appearance before the employer's board
of directors on Leavitt's behalf; and her two meetings with
Union organizers. The Board found that Cake fired Smith
because he did not like her, and that this dislike "arose
initially from [his] resentment of [her] protected
activities." Thus, concluded the Board, she was fired
because of her protected activities.
We discount two of Smith's activities that the
Board deemed protected because they were done in support of
Leavitt. The Board's analysis is flawed in precisely the
same way as its analysis of Cunningham's conduct. However,
Smith's other cited activities -- the Martin letter, the
paycheck dispute, and the Union activity -- are obviously
protected. They provide sufficient evidence in the record to
uphold the inference drawn by the Board that Cake disliked
Smith because of her engagement in protected activities. The
Board's view that Cake was, in effect, discharging Smith for
her involvement in these protected activities is a reasonable
one. See National Ass'n of Letter Carriers, 315 N.L.R.B. ___ ___________________________________
1176, 1178 & n.10 (1994) (if employer's animus towards
employee begins in response to employee's protected act,
Board will presume later animus derives from same unless
contrary evidence presented).
The employer argues that it has met its Wright Line ___________
burden because it would have disciplined Smith anyway, even
-28- 28
absent the protected activities, for her involvement in the
choking incident and the sunburn incident. Cake based the
August 10 letter of dismissal largely on the two August 4
letters of reprimand for those two incidents. If the two
letters of reprimand are pretextual, it follows, as the Board
recognized, that the letter of dismissal is also pretextual.
We address the two incidents in turn, concluding that there
is sufficient support for the Board's position that both
letters are pretextual.
Smith's joke about an attack by one resident
against another was clearly a breach of professional
judgment, especially since Zebulske, the person to whom she
made the facetious remark, had only begun working at Agape
House four days earlier and may not have known Smith well at
this time. The Board, in calling it a "nonevent," blithely
understated the seriousness of the incident.17 The possible
choking of one resident by another is not a joking matter.
However, the fact remains that both the timing of the August
4 letter of reprimand and the explanation offered by the
employer for the discipline raise suspicions.
Smith had already been verbally counselled by Goss
on July 21 about her role in the choking incident. Cake had
____________________
17. The General Counsel is equally cavalier about the
choking incident, claiming that Zebulske's decision to tell
the resident's mother was the "sole cause" of the
controversy.
-29- 29
recommended this counseling, and he signed off on the
counselling form. This level of discipline apparently
satisfied him for two weeks. The matter appeared to be
closed, until it was reopened by the August 4 letter.
The employer's stated reasons for increasing the
discipline on August 4 were that Smith's breach of judgment
had, in part, led to the state investigation and that one of
the investigators was dissatisfied with the leniency of the
July 21 counselling. Both explanations by the employer are
undercut by the record. The investigators' hand-written
statement of deficiencies made no mention of the choking
incident (nor did the formal letter of citation that
followed). The statement in the August 4 letter that the
regional advocate, Barnes, was "not satisfied" with the prior
disciplinary measure is even more directly contradicted by
the evidence. In testimony before the ALJ, Barnes stated
that, while he was aware of the choking incident and had
discussed it with Cake, he did not express dissatisfaction
withthe informalcounselling orrecommendadditional discipline.
Additionally, the employer took no disciplinary
action against Zebulske, who shared responsibility with Smith
for the scandal. It was Zebulske who, contrary to company
policy, informed the resident's mother of the alleged
choking. The existence of disparate treatment for similar
misconduct can support a finding of improper motive. See ___
-30- 30
Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 141 (1st Cir. 1991). _________________ ____
Given the employer's implausible explanations and
the disparate treatment of Smith and Zebulske, the Board's
conclusion that the August 4 reprimand was pretextual is
supported by substantial evidence in the record.
The sunburn incident, like the choking incident,
raises serious concerns about patient care. The story is
troubling in two distinct ways. First, while the resident
was promptly treated, the treatment was with someone else's
prescription ointment and the treating nurse, Smith, failed
to create complete records. Second, the resident was allowed
the next morning to get into a hot whirlpool bath, which
caused severe blistering. Clearly, patient care was
compromised even before the whirlpool, and Smith is squarely
to blame for this. Nevertheless, there is substantial
evidence in the record to support the Board's conclusion that
the employer's August 4 letter of reprimand to Smith for the
sunburn incident was pretextual.
The August 4 letter states that Smith's "failure to
note [the sunburn] within [the patient's] medical records
resulted in his being placed in the whirlpool." The ALJ
found, however, that Smith, despite making incomplete
treatment records, personally informed Starbuck, the
-31- 31
overnight charge nurse, about the resident's sunburn.18 And
Starbuck, in turn, told Conklin, the charge nurse who came on
duty in the morning. It was on Conklin's watch that nursing
assistant Sargent allowed the sunburned resident to get into
the hot bath.
The employer does not challenge these findings of
fact. It is clear that either Conklin or Sargent -- and not
Smith -- was to blame for the resident's being allowed to get
into the whirlpool. This fault is at least equal to Smith's
fault. But only Smith was disciplined for the sunburn
incident. While the employer was undoubtedly justified in
disciplining her for her role in the incident, the employer
has failed to explain why no one else was disciplined too.
This disparate treatment is telling. See Wyman-Gordon, 654 ___ ____________
F.2d at 141.19
Like us, the Board viewed this as a disparate
treatment case, but the Board also relied on the fact that
____________________
18. Smith also made a notation in the "24-hour notebook,"
the notebook in which nurses at Agape House communicate with
each other across shifts. The August 4 letter is somewhat
disingenuous, then, in stating that Smith "failed to properly
act, both in terms of record keeping and in terms of making
recommendations to the nurse assuming duty after [her]
shift."
19. Additionally, a few weeks after Smith's dismissal
another nurse at Agape House was reprimanded, but not fired,
for applying Silvadene to a sunburned resident without a
prescription. This too is reflective of disparate treatment.
However, a year before Smith's discharge, a nurse was fired ___
for the more serious offense of giving a seizure medication
to a resident without a prescription.
-32- 32
the employees responsible for the four other deficiencies
cited by the state investigators were not disciplined by
Yesterday's Children. The employer has convincingly argued
that these other deficiencies were systemic problems for
which no individual employees were at fault. Our focus,
consequently, is on the other employees responsible for the
sunburn incident. While our disparate treatment analysis
differs somewhat from the Board's, we think that the Board's
ultimate conclusion of pretext is a reasonable one.
Because we conclude that there is substantial
evidence in the record to support the Board's inference that
the employer's discipline of Smith for both the choking
incident and the sunburn incident was pretextual, the Board's
Smith order is enforced. For reasons discussed above, the ________
Board's Cunningham order is vacated and her case is remanded ________
to the Board for further consideration.
-33- 33