

                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 &amp;                                                                           
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

&amp;  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 &amp; 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 &amp; 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 &amp; 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 &amp; 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 &amp; Terrazzo Co.,                                                                        

984 F.2d 555, 555 (1st Cir. 1993) (per curiam); see also Acme                                                                         

Tile &amp;  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 &amp;  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  &amp; 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  &amp;  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
