Extract
Waters of Orchard Park, 642 (2004)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Orchard Park Health Care Center, Inc. d/b/a Waters of Orchard Park and Carol A. Gunnersen. Case 3-CA-23704 April 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN, SCHAUMBER, WALSH, AND MEISBURG The issue presented in this case is whether two nursing home employees were engaged in protected concerted activity under the National Labor Relations Act (the Act) when they called the New York State Department of Health Patient Care Hotline to report excessive heat in the Respondent's nursing home. The administrative law judge found that the employees were so engaged and, thus, that the Respondent, Waters of Orchard Park, violated Section 8(a)(1) of the Act when it suspended and discharged one of the employees and suspended the second.1 We agree with the judge that the employees were engaged in concerted activity. However, contrary to the judge and for the reasons discussed below, we find that the employees' activity was not protected under the Act because it did not relate to a term or condition of their employment. Accordingly, we shall dismiss the complaint. I. THE FACTS The Respondent operates a nursing home in the Buffalo, New York area. It was very hot at the end of June 20022 and even hotter during the first week of July. The older portions of the nursing home did not have central air-conditioning. To deal with the heat, the Respondent began furnishing bottled spring water for the staff, and, on July 1, the Respondent installed two freestanding air-conditioners in the unit of the nursing home involved in this case. On July 1 and 3, two patients were sent to the hospital. Both showed symptoms of dehydration. When Kathleen 1 On February 13, 2003, Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief. The General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 All dates hereafter are in 2002. Reed, a certified nursing assistant (CNA), arrived at work at 2 p.m. on July 4, two more patients had been sent to the hospital. Reed observed that the patients were refusing to eat and drink, were unresponsive, and were taking off their clothes. When Carol Gunnersen, a licensed practical nurse acting as charge nurse, arrived at 3:30 p.m., she noticed that patients were lethargic and were taking their clothes off. There was no bottled water available for the staff on that day, since it was locked in Nursing Director Tracey Sullivan's office during her holiday absence. Reed went on break around 4:30 p.m. with Gunnersen and Cynthia Fields, the nursing supervisor. Reed was not feeling well and asked if she could go home. Fields told Reed that Sullivan had said that no one could leave. Later that afternoon, Gunnersen dialed the phone number for the New York State Department of Health Patient Care Hotline and tossed the phone to Reed. Reed stated that there was no water for staff members, that several residents were dehydrated, an...See the full content of this document
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