
USCA1 Opinion

	




                            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
