Question

If you were a member of the NLRB, would you rule that HCR violated section 8(a)(1) of the NLRB by discharging the three nurses (assuming that they were covered by the NLRA)? Why or why not?

Answer 1

Petitioner and Cross-Respondent, Health Care Retirement Corporation of America, hereinafter referred to as either "petitioner" or "HCR", timely filed a petition to review the Order of the National Labor Relations Board, ("the Board"), dated March 3, 1992. Respondent and Cross-Petitioner, the National Labor Relations Board, hereinafter referred to as either "General Counsel" or "respondent", filed a cross-petition for enforcement of the Board's Order..

Petitioner operates a nursing home facility in Urbana, Ohio. In April, 1989, one of the facility's employees, Ruby Wells, filed a charge with the NLRB claiming three HCR employees, including herself, had been discharged for participating in activities protected by the National Labor Relations Act. The charge also alleged that she and two other employees received warnings from the nursing home for their participation in protected activities. On May 25, 1989, the Board issued a complaint alleging respondent had committed an unfair labor practice as defined by the National Labor Relations Act, 29 U.S.C. § 151 et seq. ("the Act"). Specifically, the complaint accused HCR of disciplining certain employees who were licensed practical nurses (LPNs) and that the employees were being disciplined for engaging in concerted protected conduct for the purpose of collective bargaining and other mutual aid and protection in violation of Section 8(a)(1) of the Act.

A hearing was held before an Administrative Law Judge ("ALJ") during which both sides presented evidence. HCR contended that the nurses were not protected by the Act because they were supervisors. The General Counsel conceded that if the nurses were found to be supervisors, then they were not to be given protected status. Moreover, HCR maintained that it acted against the nurses for entirely appropriate, lawful, reasons.

The ALJ initially found the nurses to be "employees" within the meaning of the Act and, therefore, cloaked with the protections provided for by the Act. Nevertheless, the ALJ held that HCR had not committed an unfair labor practice by discharging employees for engaging in allegedly protected activities. Rather, the ALJ found the discharges were based on justifiable considerations. Furthermore, the ALJ determined that HCR had not, except in one instance, improperly issued written warnings.

The General Counsel filed exceptions to the decision of the ALJ disputing the lack of a finding of unfair labor practices. HCR filed cross-exceptions challenging the ALJ's determination that the nurses were employees and not supervisors within the meaning of § 2(11) of the Act. On January 21, 1992, the Board issued its Decision and Order. Regrettably, the Board's Order barely addressed HCR's cross-exceptions, upholding the ALJ's determination the nurses were employees and not supervisors, merely referring to it in a footnote. The Board, upon review, however, concluded that the ALJ had incorrectly determined that HCR did not commit an unfair labor practice. Instead the board found that HCR had, in fact, discriminated against the employees for engaging in concerted protected activity in violation of § 8(a)(1) of the Act. The Board ordered HCR to cease and desist from engaging in unfair labor practices and to reinstate the nurses with back pay.