           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2       Vencare Ancillary Serv.,              Nos. 01-2165/2300
        ELECTRONIC CITATION: 2003 FED App. 0439P (6th Cir.)                     Inc. v. NLRB
                    File Name: 03a0439p.06
                                                                                              _________________
UNITED STATES COURT OF APPEALS                                                                     COUNSEL
                  FOR THE SIXTH CIRCUIT                                 ARGUED: John V. Nordlund, Fairfax, California, for
                    _________________                                   Petitioner. Meredith L. Jason, NATIONAL LABOR
                                                                        RELATIONS BOARD, Washington, D.C., for Respondent.
 VENCARE ANCILLARY               X                                      ON BRIEF: John V. Nordlund, Fairfax, California, for
 SERVICES, INC.,                  -                                     Petitioner. Meredith L. Jason, Aileen A. Armstrong,
  Petitioner/Cross-Respondent, -                                        Kira Vol, NATIONAL LABOR RELATIONS BOARD,
                                  -   Nos. 01-2165/2300                 Washington, D.C., for Respondent.
                                  -
             v.                    >                                                          _________________
                                  ,
                                  -                                                               OPINION
 NATIONAL LABOR RELATIONS -
                                                                                              _________________
 BOARD ,                          -
  Respondent/Cross-Petitioner. -                                           KENNEDY, Circuit Judge. This case presents an appeal
                                  -                                     from the Board’s order finding that Petitioner--Cross-
                                 N                                      Respondent Vencare unlawfully discharged five employees
       On Petition for Review and Cross-Application                     for engaging in a protected activity under the National Labor
        for Enforcement of an Order of the National                     Relations Act (“Act”). Petitioner argues that the Board erred
                  Labor Relations Board.                                in several respects, including its holding that the employees’
            Nos. 25-CA-26096; 25-CA-26096-2                             conduct did not constitute an unprotected partial strike. We
                                                                        deny the enforcement of the Board’s order.
                   Argued: October 23, 2003
                                                                                                BACKGROUND
            Decided and Filed: December 11, 2003
                                                                          Petitioner was a subsidiary of Vencor, Inc., a national
Before: KENNEDY and GIBBONS, Circuit Judges;                            health care provider based in Louisville, Kentucky that
ALDRICH, District Judge.*                                               operated hospitals, skilled nursing facilities and nursing
                                                                        homes, including Hermitage Nursing and Rehabilitation
                                                                        Center (“Hermitage”).1 Petitioner contracted rehabilitation
                                                                        services to Vencor. At all relevant times, Bryan Stuart was

                                                                            1
    *
                                                                             After the trial in this case, Vencor, Inc. filed for Chapter 11
     The Honorab le Ann Aldrich, United States District Judge for the   bankruptcy. It has since emerged with a new name, Kindred Healthcare,
Northern District of Ohio, sitting by designation.                      Inc.

                                 1
Nos. 01-2165/2300                       Vencare Ancillary Serv.,         3    4       Vencare Ancillary Serv.,                   Nos. 01-2165/2300
                                                  Inc. v. NLRB                        Inc. v. NLRB

the on-site supervisor of Petitioner’s employees at Hermitage,                DeCaussin told Stuart that the employees were going to
including physical therapists, physical therapy aides, speech                 refuse to see patients that day until someone from upper
and language therapists, and rehabilitation technicians. The                  management met with them to discuss their issues.
Hermitage therapists were paid hourly wages rather than a                     DeCaussin also said that the group would remain on the
salary, but did not punch a time clock. Instead, they each                    premises. Severs testified that the group informed Stuart that
filled out a daily activity report (“DAR”) each evening,                      they “were going to . . . do other work such as paper work
describing that day’s work. Petitioner calculated the                         until corporate agreed to talk to [them].”5 No one said they
therapists’ pay according to the number of hours they claimed                 were on strike, nor were the terms “strike” and “work
on their DARs.                                                                stoppage” ever used. Stuart told them he would fax the letter
                                                                              to Kevin Mack, his superior. He also asked the Vencare Five
  On May 29, 1998, Petitioner announced wage reductions                       to continue seeing patients until he received a response from
for its rehabilitation employees, effective July 1. On the same               the upper management. The group refused and returned to the
day, Stuart met with his employees to explain the wage                        therapy office to do paperwork and other projects.6 At some
changes. The employees, upset by the news, began                              point that morning, Thomas told Stuart that if the issue was
discussing among themselves in early June what actions to                     not addressed, she would quit.7
take to reverse the decision. On Friday, June 19, a group of
the rehabilitation employees met after work at Moreland Park,                    Over the course of the morning of June 23, Stuart met
near Hermitage. This group included Norman deCaussin,2                        individually with each employee who was refusing to see
Evonne Higdon, Barbara Thomas, Lisa Winkler, Nil Kanth-                       patients. He explained that their refusal to see patients was an
Bohre, and Martha Severs (“Vencare Five.”)3 At the meeting,                   entirely different matter from their grievance letter, and that
the group drafted a letter containing their demands related to                refusing to see patients could have serious consequences for
the wage reductions and raising other issues, including work                  their jobs. Around noon, deCaussin told Stuart that he was
load and scheduling.4 The group selected deCaussin to                         not feeling well and was going to go home. He also said that
represent them at the meeting with Stuart on June 23.                         if Stuart needed anything, he should call deCaussin at home.
                                                                              The other four employees told Stuart about the same time that

       2
           Norman deC aussin was the only employee not affected by the wage       5
cut.                                                                                 DeCa ussin, Higdon and T homas acknowledged that the group
                                                                              informed Stuart tha t they were going to stop seeing p atients but did not
       3                                                                      testify that the group would continue to do other work.
      They elected the name “Vencare Five” since Kanth-Bohre dropped
out because of concerns over his immigration status. Traci O’Rourke               6
signed the letter unaware that it contained the threat to stop seeing               The employees told Stuart that the therapists who were refusing to
patients. Upon learning of that “detail” at the June 23 mee ting with         see patients did not expect to be paid that day, and none of the five filled
Stuart, she went back to seeing the patients.                                 out a D AR for that T uesday.

       4                                                                          7
      The employees testified at the hearing before the administrative law          Only Thoma s actually told Stuart tha t she wo uld quit. Thom as and
judge that the group only wanted to reve rse the wage adjustm ent; it         Higdon testified, however, that they not only intended to resign, but
mere ly raised the issues such as work load and scheduling, to support        considered themselves as having already resigned before being informed
their claim that the wage adjustment was unwarranted.                         of their termination.
Nos. 01-2165/2300                   Vencare Ancillary Serv.,           5    6     Vencare Ancillary Serv.,              Nos. 01-2165/2300
                                              Inc. v. NLRB                        Inc. v. NLRB

they were taking “their designated lunch,” but that they would              Board. On August 6, 2001, the Board issued a Decision and
return. When they returned from their lunch break, Stuart                   Order reinstating the complaint, finding that Petitioner had
told them that he heard from management, and had been                       violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)).
instructed to tell them to go home until further notice. The
group met at 2:30 p.m. in the park to discuss whether to                                    STANDARD OF REVIEW
picket the Hermitage facility. They decided not to do so.
                                                                               Under the Act, the scope of this Court’s review of the
  On June 24, they met again and drafted letters which were                 Board’s findings is limited. First Healthcare Corp. v. NLRB,
faxed to corporate management, in which they requested a                    344 F.3d 523, 528 (6th Cir. 2003). More specifically, “the
meeting to address their grievances. On June 24, Petitioner                 findings of the Board with respect to questions of fact if
decided to terminate the employees who refused to see                       supported by substantial evidence on the record considered as
patients for insubordination. Stuart called all five employees              a whole shall be conclusive.” 29 U.S.C. § 160(e). “Evidence
on June 24 to schedule individual meetings with them the                    is considered substantial if it is adequate, in a reasonable
following morning. The employees telephoned each other                      mind, to uphold the decision.” Turnbull Cone Baking Co. of
and agreed to meet with the management only as a group.                     Tennessee v. NLRB, 778 F.2d 292, 295 (6th Cir. 1985) (per
When they arrived at Hermitage the next morning, they                       curiam)(citing Universal Camera Corp. v. NLRB, 340 U.S.
informed Stuart they would only meet as a group. Stuart then                474, 477 (1951)). Although this Court “should consider the
told all of them at once that they were being terminated for                evidence contrary to the Board’s conclusions,” it “may not
insubordination due to their refusal to see patients on June 23.            conduct a de novo review of the record.” Id. (citing Union
Nearly eight months later, on February 12, 1999, Petitioner                 Carbide Corp. v. NLRB, 714 F.2d 657, 600 (6th Cir. 1983)).
sent each of the five discharged therapists a paycheck for                  “When there is a conflict in the testimony, ‘it is the Board’s
Tuesday, June 23.                                                           function to resolve questions of fact and credibility,’ and thus
                                                                            this court ordinarily will not disturb credibility evaluations by
   This case originated with an unfair labor practice charge,               an ALJ who observed the witnesses’ demeanor.” Id. (quoting
filed against Petitioner by Severs on September 24, 1998.                   NLRB v. Baja’s Place, 733 F.2d 416, 421 (6th Cir. 1984)).
The General Counsel issued a complaint on October 30, 1998.                 “The Board’s application of the law to particular facts is also
Following a hearing, an administrative law judge dismissed                  reviewed under the substantial evidence standard. . .” Id.
the complaint on May 28, 1999.8 Petitioner and the General                  (citations omitted). However, “[i]f the Board errs in
Counsel both excepted to the judge’s decision before the                    determining the proper legal standard, the appellate court may
                                                                            refuse enforcement on the grounds that the order has ‘no
                                                                            reasonable basis in law.’” Id. (quoting Ford Motor Co. v.
    8
      The ALJ found that Petitioner did not violate the Act because the
                                                                            NLRB, 441 U.S. 488, 497 (1979)).
emplo yees’ work stoppage was unprotected. The ALJ found that the
employee group was a “labor organization” within the meaning of Section                              ANALYSIS
2(5) of the Act, and had failed to comply with Section 8(g), whic h
requires that a labor organization give 10 days notice before engaging in     On appeal, Petitioner argues that the refusal by the Vencare
a work stoppage a t a healthcare institution. However, the ALJ rejected     Five to see patients was unprotected by the Act for two
Petitioner’s alternative argument that the employees had engaged in an      reasons: (1) it was a partial strike; and (2) the group failed to
unprotected partial strike.
Nos. 01-2165/2300                    Vencare Ancillary Serv.,            7    8      Vencare Ancillary Serv.,             Nos. 01-2165/2300
                                               Inc. v. NLRB                          Inc. v. NLRB

give advance notice of the work stoppage, as required of                      230 F.2d 947 (6th Cir. 1956). Employees, thus, may not
employees at a health care institution by Section 8(g) of the                 “refuse to work on certain assigned tasks while accepting pay
Act. Petitioner further argues that since the work stoppage                   or while remaining on the employer’s premises.” Audubon
was unprotected, it was lawful for it to terminate the                        Health Care Ctr., 268 N.L.R.B. 135, 136 (1983) (finding that
employees for their refusal to see patients. Respondent                       nurses engaged in a partial strike when they refused to
argues that substantial evidence supports the Board’s finding                 perform some of their job functions while performing others).
that the work stoppage was protected. We find that the                        They may, however, engage in a single walkout. Daniel
employees engaged in an unprotected partial strike and that                   Constr., 277 N.L.R.B. 795 (1985).
their discharge was lawful.9 Therefore, we do not reach the
question of whether the Vencare Five constituted a labor                        The ALJ concluded that the Vencare Five did not engage in
organization that was required to give a 10 day notice before                 a partial strike. In its opinion,
striking a health care employer.
                                                                                  The General Counsel correctly characterize[d] the “old
  Section 7 of the Act protects “not only concerted activity                      patient” paperwork performed after the group’s
under the sanction of a labor union, but also concerted activity                  announcement to Stuart as incidental wind-up work done
of the same nature engaged in by unorganized employees.”                          in preparation for their work stoppage regarding new
Vic Tanny Int’l, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir.                        patients. Moreover, the Vencare Five told Stuart that
1980). However, “not...all work stoppages are federally                           they did not expect to be paid for this paperwork and
protected concerted activities.” Auto Workers Local 232 v.                        immediately left the premises when Stuart told them to
Wisconsin Employment Relations Bd., 336 U.S. 245, 255                             do so after lunch on June 23...Lastly, the employees did
(1949), overruled on other grounds by Lodge 76, Int’l Ass’n                       not “pick and choose” when they would perform their
of Mechanists & Aerospace Workers, 427 U.S. 132 (1976).                           work duties by announcing either a 24-hour or few days’
While employees may strike to “protest and seek to change                         delay in seeing patients. . .Rather their action was simply
any term or condition of their employment,” thus assuming                         a short-term, single work stoppage-the first of its kind-
the risk of losing their jobs, they may not strike and retain the                 whose only goal was to obtain a meeting with
benefits of working at the same time. First Nat’l Bank of                         management.
Omaha, 171 N.L.R.B. 1145, 1151 (1968), enforced, 413 F.2d
921 (8th Cir. 1969). Partial strikes, where employees                         Vencare Ancillary Servs., Inc., 334 N.L.R.B. No. 119, 2001
continue working on their own terms, are therefore                            WL 910767, at *17 (Aug. 6, 2001) (decision of the ALJ).
unprotected by Section 7 of the Act. Id. at 1149-51; Valley                   The Board agreed with the ALJ and found that “any work
City Furniture, 110 N.L.R.B. 1589, 1594 (1954), enforced,                     done after the group announced that they were refusing to see
                                                                              patients, was done in preparation for, and in conjunction with
                                                                              the work stoppage.” Vencare, 2001 WL 910767, at *9. The
                                                                              Board continued to say:
    9
      We accordingly do not address the issue of reinstatement and back
pay, including the que stion of whether two o f the five employees quit           In reaching this conclusion, we find it unnecessary to
before they were told they were fired. We also do not ad dress Petitioner’s       determine the percentage of time the employees normally
argument that it was never advised that the Vencare Five engaged in a             spent performing paperwork, or the percentage of billable
strike.
Nos. 01-2165/2300               Vencare Ancillary Serv.,       9    10     Vencare Ancillary Serv.,                    Nos. 01-2165/2300
                                          Inc. v. NLRB                     Inc. v. NLRB

  time attributable to paperwork. The judge found that the          might have been protected under the current law.10 They did
  employees’ paperwork function took up to 10 to 20                 not, however, do that. See, e.g., Highland Hosp., 278
  percent of their time and approximately 40 percent of             N.L.R.B. at 1097 (drawing a distinction between the security
  their billable time. However, the testimony in this regard        guards who stated they would not perform certain duties and
  was ambiguous, (particularly with respect to the 40               “the office clerical and other nonunit employees who joined
  percent figure), or was given in response to leading              the strike [,] ceased working completely[,] and refused to
  questions, and the exhibits do not clearly support the            cross the picket line.”); Audubon, 268 N.L.R.B. at 136
  testimony. For the reasons discussed below, we find that,         (“Having concluded that covering open sections was part of
  regardless of the percentage of time the employees                the nurses aides’ job duties, we find that the aides were
  normally spent on or billed for paperwork, the fact that          engaged in a partial strike when they refused to work in the
  they performed paperwork while waiting to hear back               open section. Thus, they did not completely walk off the
  from upper management did not render their work                   job.”)     The Board’s opinion that their conduct is
  stoppage an unprotected partial strike.                           commendable since they actually behaved responsibly is
                                                                    legally irrelevant. See, e.g., Audubon, 268 N.L.R.B. at 137
Id. at *9 n. 14 (emphasis added).                                   (“While employees may protest and ultimately seek to change
                                                                    any term or condition of their employment by striking or
   We find that the ALJ and the Board erred in concluding           engaging in a work stoppage, the strike or stoppage must be
that the actions of the Vencare Five did not constitute a partial
strike. Unlike the Board, we find that it is significant that the
Vencare Five did some work after making their demands                    10
known. As the Board noted in an earlier case, “the Board and                Resp ondent’s discussion of cases invo lving sit-do wn strikes is
                                                                    therefore misplaced. All the cases cited in its brief involved situations
the courts have repeatedly condemned employees’ refusal to          where the striking workers remained on the premises without working.
work on the terms lawfully prescribed by the employer while         See, e.g., City Dodge Ctr., Inc., 289 N.L.R.B . 194, 196-97 (1988),
remaining on their jobs.” Highland Hosp. Corp., 278                 enforced sub nom., Roseville Dodge, Inc. v. NLRB, 882 F.2d 135 5 (8th
N.L.R.B. 1097 (1986) (finding that the security guards              Cir. 1989) (complete work stoppage protected even though employees
engaged in a partial strike when they failed to perform some        remained on employer’s premises). Their failure to work therefore
                                                                    provided their employers with a clear indication of a strike. T he issue in
of their functions during a strike by the hospital employees);      those cases was not whether or not employees engaged in a partial strike,
See also N.L.R.B. v. Local Union No. 1229, 346 U.S. 464, 476        but rather, assuming that a strike was a comp lete one, whether or not their
n. 12 (1953) (“An employee can not work and strike at the           conduct should be protected by the Act. See, e.g., Yale Univ., 330
same time. He can not continue in his employment and                N.L.R.B. 246 , 257 (1999) (“No t every work stoppage is protected
openly or secretly refuse to do his work.”) (citations omitted).    activity, howe ver; at some point, an employer is entitled to assert its
                                                                    private property rights and demand its premises back.”). By citing these
It is true that had the Vencare Five simply remained on the         cases, Respondent merely confuses the issue by ignoring the clear
premises and waited to hear back from the management, they          difference between partial strikes and sit-down strikes. Although both
                                                                    types of strikes constitute an unprotected activity, they raise different
                                                                    concerns and should not be evaluated similarly. First Nat’l Bank of
                                                                    Omaha, 171 N .L.R.B. at 1149 (“There are cases which hold that the
                                                                    concerted activity of employees in refusing to work on assigned tasks [1]
                                                                    while accepting pay or [2] while remaining on the employer’s premises
                                                                    is unprotected.”) (emphasis added).
Nos. 01-2165/2300              Vencare Ancillary Serv.,      11    12     Vencare Ancillary Serv.,                     Nos. 01-2165/2300
                                         Inc. v. NLRB                     Inc. v. NLRB

complete, that is, the employees must withhold all their           First Nat’l Bank of Omaha, 171 N.L.R.B. at 1151.11 We
services from their employer.”); Yale University, 330              understand that the Vencare Five were upset over the
N.L.R.B. at 247 (finding that the graduate teaching fellows        impending wage cuts. They decided to “flex their muscles”
engaged in a partial strike when they refused to submit their      by withholding patient care, the major function of their jobs.
students’ final grades for the semester to the University but      The Board implies that they were doing work necessary for
continued writing letters of evaluation and recommendation         the protection of patients. However, there was no evidence
for their students). The underlying rationale of the               that any of the performed work fell into the category of
prohibition on partial strikes is that the employer has a right    protecting the patients. Furthermore, there were no other
to know whether or not his employees are striking. See Vic         exigent circumstances that required the striking employees to
Koenig Chevrolet, 263 N.L.R.B. 646, 650 (1982) (finding that       continue some work to avoid irreparable harm.12 The
“a struck employer is entitled to a clearcut decision from         employees testified that they merely caught up on back
employees either to join the strike or to work in accordance       paperwork which, in some cases, was several weeks old, as
with the instructions of the employer, including performance       well as helped the clerical staff with filing.
of struck work, so long as the employer does not discriminate
against employees unwilling to perform the work of the               We reiterate that employees must completely stop working
strikers.”). The conduct exhibited by the Vencare Five does        or risk being discharged for engaging in an unprotected
not meet the clear definition of a protected strike. Yale Univ.,   activity. There will always be conflicts between employers
330 N.L.R.B. at 247 (affirming the ALJ’s finding that the          and employees, and the employees will often resort to
teaching fellows who refused to submit grades while writing
recommendation letters “sought to bring about a condition
                                                                        11
that would be neither strike nor work.”) (quoting Valley City,             Petitioner and Respondent argue about the legal relevance of the
110 N.L.R.B. at 1595). The Board had clearly articulated a         Vencare Five’s expectation that they would not be paid for June 23. In
long time ago why the Vencare Five’s decision to stop seeing       light of the Fair Labor Standards Act’s requirement that employees be
                                                                   paid for any time they are “suffered or permitted to work,” regardless of
patients while performing other duties is an unprotected           whether the employees ask or expect to be paid, we agree with Petitioner
activity:                                                          that employees’ expectations about being paid are not relevant to the
                                                                   question of whether there was a partial strike. 29 CFR § 785.11 (“F or
  Employees may protest and seek to change any term or             example, an employee may voluntarily continue to work at the end of the
  condition of their employment, and their ultimate                shift. He may be a piecewo rker, he may desire to finish an assigned task
  sanction is the strike. . .What may make such a work             or he may wish to corre ct errors, paste work tickets, prepare time repo rts
                                                                   or other records. The reason is immaterial.”)
  stoppage unprotected is exactly what makes any work
  stoppage unprotected, that is, the refusal or failure of the          12
                                                                          See, e.g., NLRB v. Reynolds & Manley Lumber Co., 212 F.2d 155
  employees to assume the status of strikers, with its             (5th Cir. 1954) (emp loyee w alked off the job and left a potentially
  consequent loss of pay and risk of being replaced.               explosive b oiler unattended); U.S. Steel Co. v. NLRB, 196 F.2d 459 (7th
  Employees who choose to withhold their services                  Cir. 1952) (supervisors refused to assist their employer in maintaining and
  because of a dispute over scheduled hours may properly           protecting the steel p lant from imminent danger and destructio n during
  be required to do so by striking unequivocally. They             strike period); Marshall Car Wheel & Foundry Co., 107 N.L.R.B. 314
                                                                   (1943), enf. denied, 218 F.2d 409 , 413 (5th C ir. 195 5), supplem ented , 115
  may not simultaneously walk off their jobs but retain the        N.L.R.B. 7 (1956) (employee walkout happened at the moment molten
  benefits of working.                                             iron was ready to be poured).
Nos. 01-2165/2300             Vencare Ancillary Serv.,     13
                                        Inc. v. NLRB

withholding their work as means of applying pressure on the
employers. The employers will often respond by replacing
the striking workers. Although we are sympathetic to the
plight of the Vencare Five, who appear to have no knowledge
of the labor law, we are constrained to find that the harsh
result in this case is a consequence of a Congressional policy
designed to protect both the employer and the employee. See,
e.g., Vic Koenig Chevrolet, 263 N.L.R.B. at 650 (finding that
a “young, inexperienced, very likely unknowledgeable about
labor relations” lot boy nevertheless engaged in an
unprotected partial strike when he failed to perform some of
his duties).
                      CONCLUSION
  In sum, we conclude that the employees engaged in an
unprotected strike and were therefore lawfully discharged by
Petitioner. Enforcement of the Board’s order is denied.
