Aroostook County Regional Ophthalmology Center

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 218 (N.L.R.B. 1995)

218
317 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Board adopts the judge’s conclusions that the Respondent
violated Sec. 8(a)(1) by promulgating and maintaining rules prohibit-
ing its employees from communicating about their terms and condi-
tions of employment with fellow employees, family members, or
friends and by conditioning the reinstatement of four discharged em-
ployees on their agreement to bring complaints only to the owner
and president of the Respondent and to stop complaining among
themselves.
2 NLRB v. Baptist Hospital, 442 U.S. 773 (1979); Beth Israel Hos-
pital v. NLRB, 437 U.S. 483 (1978); and St. John’s Hospital, 222
NLRB 1150 (1976).
3 St. John’s Hospital, 222 NLRB at 1151.
4 The St. John’s Hospital line of cases involved rules restricting
employee communication in the forms of solicitation and distribution
of literature. The Board’s reasoning in those cases applies with equal
force here, where the protected communication concerns grievances
regarding wages, hours, and conditions of work. Cf. Vanguard
Tours, 300 NLRB 250 (1990), in which the Board approved the ad-
ministrative law judge’s application of no-solicitation rules to the
employer’s rule prohibiting employee discussion of wages, hours,
and working conditions.
Aroostook County Regional Ophthalmology Center
and Jacquelyn Shepard and Sheila Lamoreau.
Cases 1–CA–29433 and 1–CA–29434
April 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On November 22, 1993, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and a support-
ing brief. The Respondent and the General Counsel
also filed answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 only to the extent consistent with this Deci-
sion and Order.
The issues we address in this decision are whether
the Respondent violated Section 8(a)(1) of the Act by
maintaining a rule that prohibited employees from dis-
cussing grievances within ‘‘earshot of patients,’’ and
by discharging employees Buck, Lamoreau, Shepard,
and James because of their protected concerted activ-
ity. Contrary to the judge, we find that the Respondent
violated the Act in both instances.
1. The rule prohibiting the discussion of grievances.
The judge found, and we agree, that the rule in the Re-
spondent’s Office Policy Manual requiring all griev-
ances to be discussed in private with the office man-
ager or physicians can reasonably be read as forbid-
ding employees from engaging in the protected activity
of discussing with one another grievances against the
Respondent with a view to pursuing concerted action.
We disagree, however, with his finding that the second
part of the rule, prohibiting employees from discussing
‘‘any grievances within earshot of patients,’’ lawfully
may be maintained by the Respondent. We conclude
that the Respondent’s rule, which has no limitations as
to time or place, is an overly broad restriction of the
employees’ statutory right to engage in protected con-
certed activity.
The Board, with Supreme Court approval, has estab-
lished special rules concerning restrictions on the exer-
cise of Section 7 rights in health care institutions.2
These rules require striking a balance between employ-
ees’ statutory rights and the needs of the health care
employer to provide undisrupted patient care in a tran-
quil atmosphere. Thus, the Board has held that health
care facilities may prohibit solicitation in immediate
patient care areas. The Board found that in such areas
as patients’ rooms, operating rooms, and places where
patients receive treatment, solicitation might be unset-
tling to patients who need quiet and peace of mind.
The Board concluded that in such circumstances, the
balance must be struck against employee rights. With
respect to areas other than those involved in immediate
patient care, however, such as cafeterias and lounges
to which patients have access, the Board held that so-
licitation must be permitted in the absence of a show-
ing that disruption to patient care would necessarily
occur if solicitation were allowed in those areas. The
Board concluded that the balance should be struck
against the health care employer’s interests in such
cases: ‘‘On balance, the interests of patients well
enough to frequent such areas do not outweigh those
of the employees to discuss or solicit union representa-
tion.’’3
Applying these rules to the Respondent’s prohibition
of employee discussion of grievances ‘‘within earshot
of patients,’’4 we find that the Respondent’s prohibi-
tion does not strike a proper balance. The restriction
on discussion of grievances has no limitation as to
time or place. If a patient can hear the grievance dis-
cussion, the employees are in violation of the Re-
spondent’s rule, regardless of when or where the dis-
cussion takes place. It may reasonably be inferred that
the wide reach of the Respondent’s rule discourages
employees from any discussion of grievances for fear
that a patient may overhear the discussion. Thus, the
Respondent’s rule may be construed as making no ac-
commodation for employees’ exercise of statutory
rights.
Further, the Respondent has made no showing that
disruption of its patient care would necessarily occur
if grievances were overheard by patients in certain cir-
cumstances. At best, the Respondent has shown that all
its patients have some malady and that most of them
are elderly. In this regard, the Respondent’s operation
219AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER
5 437 U.S. at 505.
6 All subsequent dates are in 1992.
is not significantly different from the acute care facili-
ties involved in the St. John’s Hospital line of cases.
The Respondent has shown no reason why it should be
permitted to have more restrictive rules than those fa-
cilities.
Accordingly, we find that the Respondent’s rule
against discussing grievances within earshot of patients
violates Section 8(a)(1) insofar as it is not restricted to
immediate patient care areas. In making this deter-
mination, we emphasize that we do not bar the Re-
spondent from establishing rules to ensure the peace-
ful, uninterrupted delivery of patient care. As the Su-
preme Court recognized in Beth Israel Hospital, ‘‘the
importance of the employer’s interest in protecting pa-
tients from disturbance cannot be gainsaid.’’5 Instead,
we require that the Respondent’s rules governing em-
ployees’ conduct allow for an adequate balance be-
tween the need to deliver patient care and the rights
of employees to engage in protected concerted activity.
By failing to place any limitations on the rule against
discussing grievances, the Respondent has foreclosed
the striking of such a balance.
2. The discharges of employees Buck, Lamoreau,
Shepard, and James. On May 28, 1992,6 nurses Buck,
Lamoreau, and Shepard and opthamalic technician
James complained to at least one other employee about
the Respondent’s announcement of a change in their
schedule for the following day. On May 29, the Re-
spondent’s owner and president, Craig Young, acting
on reports of these complaints, called the four employ-
ees to his office and terminated them. Young then im-
mediately offered to reinstate the four employees if
they would agree, inter alia, to stop ‘‘gossiping and
complaining’’ to one another and to bring any com-
plaint they had to him alone. The judge concluded that
the May 28 activity of the four was neither concerted
nor protected and that the Respondent, therefore, did
not violate the Act by terminating them. The judge
also found, however, that the Respondent’s conditions
for their reinstatement were unlawful. We agree with
the judge’s finding that the conditions for reinstate-
ment were unlawful. Contrary to the judge, however,
we also find that the termination of the four employees
was unlawful.
The facts, as more fully set forth in the judge’s deci-
sion, are as follows. On May 28, the Respondent
learned that a patient needed to be scheduled for emer-
gency surgery the following day. The May 29 schedule
had to be changed to accommodate the emergency.
Buck, Lamoreau, Shepherd, and James were required
to go to a different satellite office than the one origi-
nally assigned to them.
After learning of the schedule change, Buck com-
plained loudly about the change to employee Cormier
in the recovery room in the presence of two or three
patients. Shortly afterward, Buck saw Lamoreau in the
hall outside the recovery room and spoke to her about
the schedule change. They complained to each other,
at normal speaking volume, about the change for May
29 and about the way the Respondent changed their
schedules on short notice.
After speaking with Buck, Lamoreau returned to the
operating room and began to talk about the schedule
change with ophthalmologist Lindahl, an employee of
the Respondent. Lamoreau spoke in a normal, but ex-
asperated tone. Lamoreau’s conversation with Lindahl
took place about 3 feet from the patient being prepared
for surgery. Employee Smith, who was also in the
room, told Lamoreau to ‘‘shush’’ and said that
Lamoreau’s remarks were inappropriate in the cir-
cumstances. All talk ceased.
Rebecca Palmer, the Respondent’s scheduling coor-
dinator and receptionist, informed Shepard about the
schedule change in the waiting room. Shepard com-
plained about the change in an angry tone of voice at
normal volume. James then entered the waiting room.
Shepard informed James of the change and James re-
sponded, ‘‘what?’’ or ‘‘why?’’ in a tone of voice re-
flecting that she was surprised and upset. A patient
was sitting in the waiting room during these ex-
changes.
After office hours on May 28, employees Cormier,
Smith, and Paler reported, each on the heels of the
next, to Young about Buck, Lamoreau, Shepard, and
James’ responses to the schedule change. According to
Young’s testimony, he was upset by these reports and
decided that he would fire all four complaining em-
ployees and then offer to reinstate them if they would
agree to certain conditions such as not complaining to
one another, and bring all complaints directly to
Young. He admitted that he devised the termination
and conditioned reinstatement sequence as a ‘‘power
play.’’ Young stated that the four employees were his
‘‘right hand people.’’ He testified that ‘‘[w]ithout
them, our ability to see patients would be cut in half,
had they gone. So doing this was a drastic maneuver,
but I felt it was important, it had to be done, because
the, the organization was being destroyed.’’
On the morning of May 29, Young met with Buck,
Lamoreau, Shepherd, and James and carried out his
plan. Using a written agenda, Young told the employ-
ees that he was dissatisfied with their behavior over
the last year. He spoke of their complaints about work
schedules, clinic assignments, cliques, and the like. He
described the previous owner’s attempt to deal with
these complaints in the past year through team meet-
ings as ‘‘failing miserably.’’ Young said that their con-
duct on May 28, which had been overheard by pa-
tients, including ‘‘the biggest gossip in town,’’ was
‘‘the last straw.’’ He said, ‘‘on top of this, there have
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Member Cohen does not pass on the issue of whether the May
28 activity of the employees, in the operating and recovery rooms,
was protected activity. In this regard, he notes that these employees
would have been terminated in any event for protected activity en-
gaged in prior to May 28. Thus, the terminations were unlawful
without regard to whether the May 28 activity was protected. Fur-
ther, even if the terminations were lawful, the Respondent imme-
diately agreed to reinstate the employees, subject to the unlawful
condition that they refrain from complaining to each other about
working conditions. Thus, but for this unlawful condition, the em-
ployees would have been permitted to continue their employment.
Accordingly, a reinstatement and backpay remedy would be appro-
priate for this violation.
8 297 NLRB 630 (1990).
9 Scientific-Atlanta, Inc., 278 NLRB 622, 624 (1986), quoting
Tirana Industries, 245 NLRB 1258 (1979).
10 278 NLRB at 625.
11 Id., quoting Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d
Cir. 1976).
12 In agreeing that the employee activity in issue here was con-
certed within the meaning of the Act, Chairman Gould and Member
Browning decline to rely on, and question the continuing vitality of
Meyers Industries, 268 NLRB 493 (1984), remanded sub nom. Prill
v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948
(1985), reaffd. 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB,
835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
13 Health Care Corp., 306 NLRB 63, 65 (1992).
14 See, e.g., Paper Board Cases, 292 NLRB 995 (1989) (employee
made serious threats to put gun to head of another employee); and
Chrysler Corp., 249 NLRB 1102 (1980) (employee who was union
steward persisted, contrary to orders, in following a foreman around
the shop floor while engaging in loud and abusive conduct).
15 See, e.g., Health Care Corp., supra (employee demeanor during
meeting with employer involved ‘‘body language,’’ rolling of the
eyes, and facial expressions); and Severance Tool Industries, 301
NLRB 1166 (1991) (disrespectful, rude, and defiant behavior toward
a management representative as well as use of a vulgar word).
been rumblings about the absence of raises in 1992; re-
marks have been made, no raise no work.’’ Chastising
the four employees for their ‘‘lack of judgment, grati-
tude and loyalty,’’ Young informed them that they
were fired. When James asked if there was anything
they could do to get their jobs back, Young said,
‘‘Here are the ground rules, take them or leave them.’’
Young then set out the conditions for reinstatement
that included bringing complaints only to him and not
discussing them with other employees or physicians.
Young ended by telling the employees: ‘‘This is a
power play.’’
The judge found that the May 28 conduct of the
four employees did not fall within Section 7 of the Act
for two reasons. First, the conduct was not concerted
because it involved only talk about schedule changes
with nothing to suggest that the employees had the ob-
ject of initiating group action. Although the judge ac-
knowledged that the Board has held that employee talk
about wages, without evidence of intent to engage in
group action, is concerted action, he concluded that
those cases did not apply here, where the talk was
about schedule changes rather than wage levels. Sec-
ond, the judge found that even if the May 28 conduct
were concerted, it was not protected because the em-
ployees had voiced their complaints in the presence of
patients against the Respondent’s rules. The judge also
found that although Young would not have fired the
four employees on May 29 had he not already been
unhappy about their pre-May 28 conduct, there was in-
sufficient evidence of the context of this earlier con-
duct to support a finding that it was a reason for termi-
nation of the four employees.
We disagree with each aspect of the judge’s analy-
sis.7 Initially, we find that the judge erred in finding
that the employees’ discussions about schedule
changes were not concerted because there was no sug-
gestion that they had the object of initiating group ac-
tion. We find that the employees’ discussions here are
similar to the wage discussions held protected and con-
certed in Trayco of S.C.8 and the other cases cited by
the judge. Those cases hold that discussion of wages
is protected concerted activity because wages are a
‘‘vital term and condition of employment,’’9 ‘‘prob-
ably the most critical element in employment,’’10 and
‘‘the grist on which concerted activity feeds.’’11
Changes in work schedules involve when and where
employees will work. They are directly linked to hours
and conditions of work—both vital elements of em-
ployment—and are as likely to spawn collective action
as the discussion of wages. Moreover, the minutes
from the team meetings held during the previous year
show that the Respondent’s employees had expressly
identified schedule changes as an important issue con-
cerning their working conditions. In such cir-
cumstances, we conclude that the employees’ com-
plaints to each other about the schedule changes con-
stitute protected concerted activity.12
Contrary to the judge, we further conclude that
Buck, Lamoreau, and Shepard did not lose the protec-
tion of the Act because they voiced their complaints in
the presence of patients. The judge’s reasoning for his
finding was that the Respondent had a valid rule
against discussing grievances within earshot of pa-
tients. For the reasons discussed earlier in this deci-
sion, we have found this rule to be invalid. It cannot,
therefore, be a ground for removing from protection
activity that is otherwise protected by Section 7 of the
Act.
Nor do we find the conduct of the four employees
so egregious as to compel a finding that it otherwise
lost the protection of the Act. The Board has long held
that in the context of protected concerted activity by
employees, a certain degree of leeway is allowed in
terms of the manner in which they conduct them-
selves.13 Although flagrant, opprobrious conduct may
sometimes cause an employee’s concerted activity to
lose the protection of the Act,14 impropriety alone does
not strip concerted conduct of statutory protection.15
Here, the employees engaged only in verbal conduct.
221AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER
16 In this regard, we disagree with the judge’s finding that it is not
possible to discern from the record that the remarks about ‘‘no raise,
no work’’ referred to protected concerted activity. The plain meaning
of the words suggests group action over wages. Young supplied the
context for these words by placing them in the litany of other em-
ployee complaints about working conditions. In his view, the rum-
blings about no raise, no work were one more example of the behav-
ior that caused such frustration for him.
Their language was not abusive. At worst, the employ-
ees spoke in the presence of patients in a loud volume
with a tone of voice that conveyed their distress and
exasperation. This conduct is not so flagrant or egre-
gious as to warrant a loss of statutory protection.
Having found that the complaints made by the four
employees on May 28 were concerted protected activ-
ity, we turn to the question whether the Respondent
terminated the employees because of their May 28 and
pre-May 28 protected concerted activity. We find that
Young’s testimony, considered together with the condi-
tions he placed on reinstatement, establishes that the
termination of Buck, Lamoreau, Shepard, and James
was motivated by their protected concerted activities
both on and before May 28. We further find that the
Respondent has not shown that it would have termi-
nated the four employees even in the absence of their
protected concerted activity.
Young’s testimony makes clear that his reasons for
terminating the four employees were rooted in their
conduct over an 18-month period. On direct examina-
tion, he stated: ‘‘I was experiencing utter frustration
over the behavior that had been exhibited over the pre-
vious extended period of time, I think I said 12 to 18
months. I referred to specific instances of bitching, and
I think I used that word, between employees.’’ On
cross-examination, Young acknowledged that he was
referring to ‘‘complaints about most everything, work
schedules, clinic assignments, cliques, which doctor
you’re assigned to, being overworked, underpaid, and
job description.’’ Young told the employees that Dr.
Martin had set up the team structure to deal with these
problems but Young described the team approach as
‘‘failing miserably.’’ Young went on to tell each em-
ployee how appalled he was by their conduct on May
28. He referred to that conduct as unprofessional, and
a continuation of the behavior that had been going on
for a year. With regard to patients overhearing their
complaints, Young stated that ‘‘quibbling over any-
thing’’ was the last thing patients needed to hear, ‘‘es-
pecially unrest among the employees as to the way a
practice is managed.’’ In closing, Young told the em-
ployees that on top of all this, there had been ‘‘rum-
blings about the absence of raises in 1992, remarks
have been made no raise, no work.’’ He told the em-
ployees that he could not believe ‘‘the lack of judg-
ment, gratitude and loyalty’’ they had shown and that
he was not going to tolerate it any longer. Young in-
formed the employees that they were fired.
Young’s testimony shows that his overriding con-
cern about the employees’ behavior was their contin-
ued complaints about working conditions—complaints
which amounted to unrest among the employees about
how the practice was managed. To be sure, Young also
expressed genuine concerns about the impact of the
employees’ conduct on the patients, but his testimony
shows that concern for the well-being of patients was
not the driving force behind his frustration with the
employees. The well-being of the practice he had taken
over was the central focus of his attention. The ‘‘prob-
lems’’ that Young identified were not confined to em-
ployees’ interaction with patients. On the contrary, the
problems involved complaints about work schedules,
job descriptions, assignments to doctors, and the
amounts of work and pay. Any doubt that the central
motivation for the termination was to silence employee
complaints about working conditions is dispelled by
Young’s concluding remarks in his termination speech.
Again, he made no reference to interaction with pa-
tients. Instead, he referred to rumblings among em-
ployees about the absence of raises in the past year
and remarks about ‘‘no raise, no work.’’ Young told
the employees that they had shown an unbelievable
lack of judgment, gratitude, and loyalty. The clear im-
port of these remarks is that Young feared that all the
complaints and unrest about working conditions would
culminate in a work stoppage—the ultimate demonstra-
tion of lack of gratitude and loyalty.16
Young’s conditions for reinstatement of the four em-
ployees further establish that the motivating factor for
the terminations was the employees’ protected con-
certed activity. Immediately after firing the four em-
ployees, Young told them they could have their jobs
back if they agreed not to complain to the other two
doctors, who were also employees, not to gossip or
complain among themselves, and to bring complaints
to Young alone. These conditions reveal the types of
employee conduct which weighed heaviest in the Re-
spondent’s decision to terminate the four employees.
Only if this conduct were abandoned, would the Re-
spondent allow the employees to return to their jobs.
Each condition for reinstatement was directed
against concerted activity. Each, as the judge found,
‘‘obviously’’ violated Section 8(a)(1). We find that
these conditions for reinstatement make it equally ob-
vious that the Respondent’s decision to terminate the
four employees was driven by the desire to end their
protected concerted activity—to make certain that their
complaints to each other and to other employees did
not result in such serious action as a work stoppage.
We further find that the Respondent has not shown
that it would have terminated the four employees even
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981).
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
in the absence of their protected activity.17 Young
criticized the employees’ unprofessional conduct to-
ward one another and their voicing of complaints in
the presence of patients in the operating and recovery
rooms. There is no reason to doubt that these were
matters of genuine concern to Young. The overall
thrust of Young’s termination remarks and the unlaw-
ful conditions he imposed for reinstatement, however,
indicate that Young would not have terminated these
employees solely on the basis of their May 28 com-
plaints in the presence of patients. As discussed above,
the focus of Young’s remarks was on the employees’
complaints about terms and conditions of employment
over a 12- to 18-month period. Young admitted that he
devised the termination and conditioned reinstatement
sequence as a ‘‘power play’’ to get the employees to
‘‘play by the rules.’’ Young stated that the four em-
ployees were his ‘‘right hand people.’’ He testified that
‘‘without them, our ability to see patients would be cut
in half, had they gone. So doing this was a drastic ma-
neuver, but I felt it was important, it had to be done,
because the, the organization was being destroyed.’’
Young’s conditions for reinstatement show that his
major fears about the destruction of his practice cen-
tered on the employees interacting with each other on
matters of scheduling, raises, and conditions of em-
ployment. Reviewing Young’s testimony as a whole,
we conclude that although he expressed true concerns
about the employees’ conduct toward patients, those
concerns, alone, would not have led him to engage in
such a drastic maneuver. It was the continuing con-
certed complaints about working conditions and the
rumblings about a work stoppage that drove him to
such desperate measures.
Accordingly, we conclude that the Respondent vio-
lated Section 8(a)(1) by terminating employees Buck,
Lamoreau, Shepard, and James.
ORDER
The National Labor Relations Board orders that the
Respondent, Aroostook County Regional Ophthalmol-
ogy Center (ACROC), Presque, Maine, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining unlawful rules
prohibiting its employees from communicating about
their terms and conditions of employment at ACROC
with fellow employees, family members, or friends,
within the hearing of patients.
(b) Discharging employees because they exercised
the rights guaranteed to them by Section 7 of the Act.
(c) Failing to reemploy any discharged employee be-
cause the employee refuses to agree to abide by rules
that purport to restrict the rights granted to employees
by Section 7 of the Act.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jacquelyn Shepard and Sheila Lamoreau
immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s action against them in the manner set forth
in the remedy section of the administrative law judge’s
decision.
(b) Make whole Susan Buck and Gayle James for
any loss of earnings and other benefits suffered by
them as a result of the Respondent’s action against
them in the manner set forth in the remedy section of
the administrative law judge’s decision.
(c) Remove from its files any reference to the un-
lawful discharges of Jacquelyn Shepard, Sheila
Lamoreau, Susan Buck, and Gayle James and notify
the employees in writing that this has been done and
that the discharges will not be used against them, in
any way.
(d) Rescind the following provisions of the Re-
spondent’s Office Policy Manual:
No office business is a matter for discussion
with spouses, families or friends.
All grievances are to be discussed in private
with the office manager or physicians. It is totally
unacceptable for an employee to discuss any
grievances within earshot of patients.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its facility in Presque, Maine, and in
those of its other offices in which the Respondent cus-
tomarily posts notices to employees copies of the at-
tached notice marked ‘‘Appendix.’’17 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
223AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER
1 Shepard and Lamoreau filed their unfair labor practice charges on
June 4, 1992. They subsequently amended the charges on July 16.
The consolidated complaint issued on July 17, 1992, and was
amended at the hearing. I held the hearing in Presque Isle, Maine,
on March 17 and 18, 1992. The General Counsel and ACROC filed
posthearing briefs.
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT promulgate or maintain unlawful rules
prohibiting you from communicating with fellow em-
ployees, family members, or friends about your terms
and conditions of employment within the hearing of
patients.
WE WILL NOT discharge you because you exercised
rights guaranteed to you by Section 7 of the Act.
WE WILL NOT fail to reemploy any discharged em-
ployee because the employee refuses to agree to abide
by rules that purport to restrict the rights guaranteed to
employees by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Jacquelyn Shepard and Sheila
Lamoreau immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus in-
terest.
WE WILL make whole Susan Buck and Gayle James
for any loss of earnings and other benefits resulting
from their discharges, less any net interim earnings,
plus interest.
WE WILL notify Jacquelyn Shepard, Sheila
Lamoreau, Susan Buck, and Gayle James that we have
removed from our files any reference to their discharge
and that the discharge will not be used against them
in any way.
WE WILL rescind the following provisions in our Of-
fice Policy Manual:
No office business is a matter for discussion
with spouses, families or friends.
All grievances are to be discussed in private
with the office manager or physicians. It is totally
unacceptable for an employee to discuss any
grievance within earshot of patients.
AROOSTOOK COUNTY REGIONAL OPH-
THALMOLOGY CENTER
Kathleen F. McCarthy, Esq., for the General Counsel.
Linda D. McGill, Esq. (Moon, Moss, McGill & Bachelder),
of Portland, Maine, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEPHEN J. GROSS, Administrative Law Judge. Craig
Young is the owner and president of the Respondent, Aroos-
took County Regional Ophthalmology Center (ACROC). In
May 1992, Young fired four employees. He then offered to
reemploy each of them if, but only if, each accepted certain
conditions that he then specified.
The General Counsel contends that (1) two ACROC rules
governing employee behavior violate Section 8(a)(1) of the
National Labor Relations Act (the Act); (2) Young fired the
four employees because of the employees’ protected activity
and because the employees’ behavior conflicted with the two
unlawful ACROC rules; and (3) the conditions that Young
set for reemployment violated Section 8(a)(1) of the Act.1
ACROC admits that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Board accordingly has jurisdiction over this
matter. But ACROC denies that it violated the Act in any
respect.
I. ACROC’S OPERATIONS AND FACILITIES
Young is a physician. More particularly, he is an ophthal-
mologist. He and several other physicians whom ACROC
employs perform eye surgery (dealing with cataracts and ret-
inal problems, for example) and provide other kinds of treat-
ment for people suffering maladies of the eye. Most of
ACROC’s patients are elderly.
ACROC’s main facility is in Presque Isle, Maine. All the
surgery performed by ACROC’s physicians is done either in
the ‘‘ambulatory surgery center’’ of ACROC’s Presque Isle
facility or, if general anesthesia is needed, in a hospital in
Presque Isle.
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ACROC has additional facilities elsewhere in northern
Maine. During the relevant period—mid-1992—these ‘‘sat-
ellite’’ offices were in Millinocket, Houlton, and Madawaska.
(All of the events to which I refer in this decision took place
in 1992.) ACROC operates each of the satellite offices only
a relatively few days per month. On such days ACROC per-
sonnel travel from the Presque Isle area in the morning and
return to Presque Isle in the evening.
ACROC’s employees are not represented by a union.
II. DO ANY OF ACROC’S RULES VIOLATE THE ACT?
ACROC has an ‘‘Office Policy Manual’’ (the OPM). As
Young put it, the OPM is ‘‘the working Bible of the prac-
tice’’ at ACROC, it is ‘‘the guideline by which all employ-
ees are expected to perform and behave.’’ Every ACROC
employee gets a copy. ‘‘Nearly yearly’’ Young and all of
ACROC’s employees ‘‘sit down and hammer it out, page by
page.’’
The General Counsel contends that two of the OPM’s pro-
visions violate the Act.
One of the provisions at issue reads:
No office business is a matter for discussion with
spouses, families or friends.
Ordinarily ‘‘office business’’ may reasonably be inter-
preted to include employees’ terms of employment. Because
employees have the right to seek the assistance of, among
others, ‘‘spouses, families or friends’’ on matters pertaining
to their terms of employment, the provision is, prima facie,
a violation of Section 8(a)(1) of the Act. E.g., Kinder-Care
Learning Centers, 299 NLRB 1171 (1990); Pontiac Osteo-
pathic Hospital, 284 NLRB 442, 465–466 (1987); The Loft,
277 NLRB 1444 (1986); Enterprise Products, 265 NLRB
544, 553 (1982).
ACROC contends that, in context, it is evident that the
provision relates only to information about patients. And I
will assume, for argument’s sake, that the provision would
be an appropriate one if it read: ‘‘No information about pa-
tients is a matter for discussion with spouses, family or
friends.’’
It is true that the provision follows a long paragraph about
the need to keep confidential information about patients. But
the heading of the relevant part of the OPM (sec. B, pt. II)
is called ‘‘confidentiality’’—not ‘‘patient confidentiality’’
and the provision of concern to us is in a paragraph separate
from the discussion about patient information.
As a result it is at least ambiguous whether the ‘‘no office
business’’ provision is intended to be limited to matters of
patient information. And ‘‘[w]here ambiguities appear in em-
ployee work rules promulgated by an employer, the ambigu-
ity must be resolved against the promulgator rather than
[against] the employees who are required to obey it.’’
Norris/O’Bannon, 307 NLRB 1236 (1992).
Young testified that ACROC has not applied the provision
to restrict discussions about terms of employment among em-
ployees. But the question here does not concern
intraemployee discussion. It is whether employees would rea-
sonably read the provision as restricting their ability to seek
support from their families and from the community should
they have a dispute with ACROC about any terms or condi-
tions of employment. In any case ‘‘[a]s long as the rule re-
mained in existence, and as long as the Respondent failed to
notify employees of its revocation or recission, the possibility
of its application against employees engaged in protected ac-
tivities’’ would tend to interfere with the expression by
ACROC’s employees of their Section 7 rights. The Loft,
supra, 277 NLRB at 1461.
I conclude that the provision does tend to restrict employ-
ees from engaging in activity the Act protects and that, by
maintaining the provision, ACROC violated Section 8(a)(1).
The second provision at issue is two sentences long. It
reads:
All grievances are to be discussed in private with the
office manager or physicians. It is totally unacceptable
for an employee to discuss any grievances within ear-
shot of patients.
Let us first consider the second sentence.
As touched on earlier, ACROC treats people who need eye
surgery or who have maladies of the eye. No one goes to
ACROC to be fitted for glasses or for a routine eye examina-
tion. All ACROC patients, that is, are ill. And almost all are
elderly. Under these circumstances, it seems to me, it is in
the best interest of ACROC’s patients for ACROC’s employ-
ees always to discuss their grievances out of earshot of pa-
tients. Concomitantly, at all of ACROC’s offices there are
rooms in which intrastaff discussions can be held out of all
patients’ hearing. I conclude, therefore, that ACROC can
lawfully maintain a rule prohibiting employees from discuss-
ing grievances ‘‘within earshot of patients.’’ Cf. NLRB v.
Baptist Hospital, 442 U.S. 773 (1979); Beth Israel Hospital
v. NLRB, 437 U.S. 483, 505 (1978); Presbyterian St. Luke’s
Medical Center, 258 NLRB 93, 98 (1981).
But what about the first sentence, the one that reads: ‘‘All
grievances are to be discussed in private with the office man-
ager or physicians.’’
To begin with, I appreciate that there are appropriate, en-
tirely lawful, reasons why Young would want to encourage
employees to bring their grievances directly to someone in
management.
Secondly, the sentence does not mean what it says. Young
handles employee grievances, not ACROC’s ‘‘office man-
ager’’ (who is ACROC’s bookkeeper). And, as we shall see,
Young specifically forbade four employees from discussing
their grievances with any physician except Young.
For all of that, the sentence can reasonably be read as for-
bidding employees from engaging in the protected activity of
discussing with one another, with a view to pursuing con-
certed action, grievances they have with ACROC.
Again, we must consider the sentence’s context in that it
is immediately followed by the sentence about not discussing
grievances ‘‘within earshot of patients.’’ But if the only point
of the first sentence is to remind employees not to discuss
grievances when they are near patients, then the sentence
would not be needed at all. (The second sentence handles
that concern.) Thus the context virtually compels the conclu-
sion that the first sentence is intended to restrict employees
in terms of with whom they may discuss their grievances.
ACROC contends that it is not the intent of the sentence
to limit intraemployee discussions. ACROC further contends
that employees know very well that they are permitted to dis-
cuss among themselves issues concerning their terms and
conditions of employment. In fact, for a considerable period
225AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER
ACROC maintained a ‘‘team’’ system by which employees
were encouraged to do so.
For two reasons, however, I conclude that those conten-
tions are not persuasive. The first is that the evidence shows
that Young did indeed want to limit (or eliminate) the discus-
sion of grievances among employees. Thus (as will be dis-
cussed below), when Young fired four employees in May
1992, one of the reasons he gave to those employees for his
action was that they complained to one another about condi-
tions at ACROC. Second, ACROC failed to show that all its
employees did understand that the sentence did not prohibit
them from discussing with other employees their concerns
about their terms and conditions of employment. I thus con-
clude that by maintaining the following rule, ACROC vio-
lated Section 8(a)(1) of the Act: ‘‘All grievances are to be
discussed in private with the office manager or physicians.’’
See K Mart Corp., 297 NLRB 80, 83 (1989); Pontiac Osteo-
pathic Hospital, supra; The Loft, supra; Norris/O’Bannon,
supra.
The remaining pages of this decision consider whether
ACROC violated the Act when Young fired four employees
and required that, in order to be rehired, they agree to certain
conditions that he specified.
III. ACROC’S PERSONNEL
The events at issue involved so many ACROC personnel
that the reader may find it difficult to remember the roles
each played in ACROC. Here is an alphabetical listing of
these personnel. (I will repeat some of this information when
I discuss the various events.)
Susan Buck—Young fired Buck on May 29. Buck is a reg-
istered nurse (RN). Buck was one of the ACROC nurses who
traveled to the satellite offices as the need arose.
Kathy Cormier—Cormier is an RN and had the title of
‘‘director of nursing’’ for ACROC. Cormier worked in
ACROC’s surgery center in Presque Isle. Despite her title, at
all relevant times she was an employee, not a supervisor.
Gayle James—Young fired James on May 29 but rehired
her that same day. James is an ‘‘ophthalmic technician.’’
James travels to the satellite offices as the need arises.
Sheila Lamoreau—Young fired Lamoreau on May 29.
Lamoreau is an RN. Lamoreau was one of the ACROC
nurses who traveled to the satellite offices as the need arose.
Kenneth Lindahl—An ophthalmologist. An employee of
ACROC.
Martin (the record does not tell us what his first name
is)—An ophthalmologist. For a period that ended sometime
prior to May 29 (1992), Martin had an ownership interest in
ACROC. After that ownership interest came to an end he
worked for ACROC as an employee.
Rebecca Palmer—ACROC’s ‘‘scheduling coordinator’’
and a receptionist. She traveled to the satellite offices as the
need arose.
Jane Pryor—The receptionist in ACROC’s surgery center
(in Presque Isle).
Jacquelyn Shepard—Young fired Shepard on May 29.
Shepard is an RN. Shepard was one of the ACROC nurses
who traveled to the satellite offices as the need arose.
Verna Smith—A licensed practical nurse (LPN) employed
by ACROC in its surgery center in Presque Isle.
Craig Young—As noted above, Young is an ophthalmol-
ogist who is ACROC’s owner and its president. As far as the
record here is concerned, he is ACROC’s only supervisor.
A. The Events of May 28
On the morning of May 29 Young fired employees Susan
Buck, Gayle James, Sheila Lamoreau, and Jacquelyn
Shepard. Young did so on the basis of information related
to him by three other employees on the evening of May 28
about events that occurred earlier on May 28.
B. The Schedule Change
Martin (an ACROC ophthalmologist) was treating patients
in Millinocket on the morning of May 28. He discovered that
one of the patients needed emergency surgery. Martin told
Palmer, who also was in Millinocket that day (as the recep-
tionist), to schedule the surgery for May 29 in a hospital in
Presque Isle. Palmer called Presque Isle and gave Martin’s
message to Pryor (the surgery center’s receptionist). Pryor
called the hospital, scheduled the surgery for noon on May
29, and then told Young. ACROC’s schedule for May 29 had
been set sometime before. (ACROC’s schedule specifies
which personnel are to work in which offices.) But the May
29 schedule had to be changed because of that emergency
surgery. Young makes all scheduling decisions and, accord-
ingly, it was Young who thereupon rearranged the May 29
schedule. The rearrangements affected, among other things,
which personnel would be going to the various satellite of-
fices. The changes affected in the following ways the four
employees whom Young fired on May 29:
(1) Under the revised schedule, Buck was to work in
ACROC’s surgery center in Presque Isle. She had
been scheduled to go to Houlton. The way Young had
rearranged the schedule gave Buck no time off (on
May 29) for lunch; the schedule had Buck working
from 8 a.m. straight through until 2:30 p.m.
(2) Under the revised schedule, Lamoreau, like Buck,
was to work in Presque Isle instead of Houlton. And
like Buck, the rearranged schedule required Lamoreau
to work without a break from 8 a.m. to 2:30 p.m.
(3) Shepard, who had been scheduled to work in
Presque Isle, was to go to Houlton.
(4) James, like Shepard, was to work in Houlton instead
of Presque Isle.
Young gave the rearranged schedule to Pryor. Pryor left
Young, gave a copy of the new schedule to Buck (who brief-
ly complained to Pryor about the change) and then went to-
ward the operating room, where she told Lamoreau about the
rearranged schedule. Pryor then telephoned Palmer, who was
in ACROC’s Millinocket office, and told Palmer about the
changes.
C. Buck’s Complaints to Cormier
Buck was in the ‘‘recovery room’’ of the Presque Isle sur-
gery center when he got the news from Pryor. (The term
‘‘recovery room’’ is a partial misnomer in that it is used by
patients awaiting surgery as well as by patients who have
just completed surgery.) Two or three patients were seated
in the recovery room. Buck expressed her unhappiness about
the change first to Pryor and then, louder and longer, to
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cormier (the ‘‘director of nursing’’) who was also in the re-
covery room.
At least one of the waiting patients was within 5 feet of
Buck when she complained about the schedule change to
Cormier and thus was within easy earshot of Buck. And be-
cause the room is small, all the patients in the room may
have overheard Buck’s complaints. (Buck contended that the
noise from a fan together with piped-in music may have
drowned out her words. I do not credit that testimony. No
party called any of ACROC’s patients as a witness, and thus
we do not know whether any patient actually heard this or
any other utterance at issue here—it is conceivable, for in-
stance, albeit very unlikely, that they were all hard-of-hear-
ing—or, if any patient did, whether it bothered the patient in
any way.)
D. Buck and Lamoreau
Lamoreau had been in the operating room. An operation
ended and Lamoreau escorted the patient through a hall that
led to the recovery room. Buck, meanwhile, had finished her
conversation with Cormier. When the door between the hall
and the recovery room opened, Buck saw Lamoreau and en-
tered the hallway to talk to Lamoreau.
Buck, still upset, spoke to Lamoreau about the new sched-
ule, complaining about it. Buck knew that Lamoreau was
pregnant and had not been feeling well. Buck thus was con-
cerned at least as much for Lamoreau’s sake as her own
about the fact that the new schedule provided no break for
either of them from 8 a.m. until 2:30 p.m. Buck and
Lamoreau agreed to cover for each other during the day so
that each could take a break. Additionally they complained
to one another about the way ACROC schedules were
changed on short notice. The entire conversation was at nor-
mal speaking volume.
The door between the recovery room and the hallway is
set to close after a 40-second delay. As a result the door was
open during at least some of the Buck-Lamoreau conversa-
tion. A patient was seated in the recovery room next to the
doorway, and Buck and Lamoreau were both within a few
feet of the doorway. While the door was open, therefore, the
patient was well within earshot of Buck and Lamoreau.
Buck and Lamoreau were not alone in the hallway. Smith
(the surgical LPN) was also there, headed for the recovery
room. Smith was not on friendly terms with either Buck or
Lamoreau. Smith overheard the Buck-Lamoreau conversation
and noticed that the patient seated nearby was an individual
who knew many members of the ACROC staff and who was
reputed to be a gossip.
E. The Events in the Operating Room
Lamoreau returned to the operating room when she fin-
ished talking to Buck. A patient was seated in a chair spe-
cially designed for eye operations. The operating room staff
prepared the patient for the operation. That meant that the
eye to be operated on was anesthetized and that, except for
that eye, the patient was completely ‘‘draped.’’ The patient,
who was fully conscious, thus could hear but could not see
anything (since one eye was covered and the other anes-
thetized).
In the room with the patient were Lamoreau, Smith (the
LPN), Lindahl (the ophthalmologist), an anesthesiologist, and
two other ACROC employees.
It was in this setting that Lamoreau began talking to
Lindahl about the schedule change. At the time, Lamoreau
and Lindahl were at most 3 feet from the patient; they may
have been within inches. Lamoreau was upset, for two relat-
ed reasons. One was that the change had been made on such
short notice. The other, more important, reason had to do
with medication that Lamoreau knew would be needed to
treat a patient in Houlton the next day (May 29). Lamoreau
had been planning to take the medication to Houlton herself,
and she was concerned that, now that she was going to be
in Presque Isle, the medication would not get to Houlton.
All this led Lamoreau to tell Lindahl, at normal volume
but with an exasperated tone in her voice, that yet again
there had been a schedule change and that she was not going
to Houlton on May 29. Lindahl responded, ‘‘who’s going?’’
Lamoreau started to reply, ‘‘I don’t know.’’ But in the midst
of Lamoreau’s reply Smith broke in with a loud ‘‘shush.’’
Smith went on, angrily, to say something about Lamoreau’s
remarks being inappropriate under the circumstances at hand.
Everyone stopped talking. (The operation proceeded nor-
mally.)
F. Shepard’s Response
On May 28 Shepard (one of the four employees whom
Young fired on May 29) was in ACROC’s office in
Millinocket.
As noted earlier, on May 28 Palmer, who was the recep-
tionist for the Millinocket’s office, was told about the sched-
ule change for May 29 by Pryor. Late in the morning of May
28, with Shepard standing next to Palmer’s desk, Palmer told
Shepard about the schedule change. Palmer’s desk is in one
corner of the waiting room. A number of patients were seat-
ed in the waiting room, within easy earshot of Palmer and
Shepard.
Shepard had a commitment in Presque Isle on the evening
of May 29 that was founded on her expectation that she
would be working in Presque Isle that day. She first re-
sponded to the news about the schedule change by exclaim-
ing ‘‘what!’’ Palmer replied with more information about the
change. Shepard then launched into a complaint about sched-
ule changes being made on short notice. Shepard’s voice
probably was normal in terms of volume. But Shepard was
angry and her tone of voice reflected that.
G. James’ Response
James, it may be recalled, is the fourth ACROC employee
whom Young fired on May 29. James is an ophthalmic tech-
nician.
Just as Shepard turned away from Palmer, James entered
the waiting room. (She had been in one of the examining
rooms.) Shepard said to James, ‘‘guess what, we’re going to
Houlton tomorrow.’’ James responded with only one word,
either ‘‘what?’’ or ‘‘why?’’ In either case, James’ voice re-
flected the fact that the change surprised and upset her.
At least one patient was close to James and Shepard at the
moment of this exchange.
227AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER
H. Cormier, Smith, and Palmer Meet with Young
When office hours ended on May 28, Cormier asked to
speak to Young (in the Presque Isle office). Cormier pro-
ceeded to tell Young about Buck’s response to the schedule
change. Cormier’s description was much as set out above,
except that, as Cormier portrayed it to Young, Buck’s com-
plaints lasted many minutes and included explicit attacks on
the way ACROC is managed. Additionally, Cormier charac-
terized Buck’s behavior as ‘‘completely unprofessional’’ (be-
cause Buck could be heard by patients), a characterization
that Cormier rarely had used before in speaking to Young
about ACROC’s nurses. (Cormier’s criticism of Buck to
Young was also noteworthy because Cormier considers her-
self to be a friend of Buck. Indeed, at the hearing in this case
Cormier testified that she did not consider that Buck mis-
behaved in discussing the schedule change and that Cormier
did not remember speaking to Young about Buck’s remarks.
As my description of the events indicates, I do not credit that
testimony by Cormier.)
Soon after Cormier departed, Smith asked to speak to
Young. Smith was visibly upset. Smith thereupon described
Lamoreau’s behavior in the operating room. Smith’s descrip-
tion was much as set forth above, except that, as Smith re-
membered the circumstances, Lindahl had not said anything.
Smith also described the Buck-Lamoreau conversation in the
hallway. Smith went on to opine that ‘‘it was totally inappro-
priate for staff to be bitching and complaining about schedule
changes in front of patients.’’
Palmer, meanwhile, had returned to Presque Isle from
Millinocket. She entered Young’s office just as Smith was
winding up her description of the events in the operating
room.
Palmer, referring to what she heard of Smith’s account,
began with, ‘‘if you think that is bad, let me tell you what
happened in Millinocket!’’ Again, Palmer’s description of
Shepard’s behavior and of the Shepard-James conversation
was much as described above, except that, as Palmer told it,
Shepard spoke loudly; further, Palmer did not tell Young that
James’ side of the conversation amounted to just one word.
Palmer told Young that everyone in the waiting room heard
what Shepard had said and that, because of that, Palmer was
‘‘mortified.’’
Palmer does not get along well with ACROC’s nurses and
not infrequently complained to Young about what Palmer
considered to be the inappropriate behavior of the nurses.
I. Young Fires Buck, James, Lamoreau, and Shepard
By the time Palmer left, Young was furious and upset. He
had just heard independent accounts from three different em-
ployees that three of ACROC’s four RNs and its one oph-
thalmic technician had behaved in ways that, in Young’s es-
timation, must have been troubling to patients in the process
of receiving medical treatment and may have damaged
ACROC reputation. (I will hereafter sometimes refer to
Buck, James, Lamoreau, and Shepard, collectively, as the
‘‘four nurses,’’ even though James is not, technically, a
nurse.)
Young decided that the following morning he would fire
all four nurses and then offer to reinstate them if they agreed
to conditions that would prevent a recurrence of the events
of May 28 and, additionally, would deal with some other em-
ployee problems that concerned Young.
Young made that decision without first hearing from Buck,
Lamoreau, Shepard, or James or from any of the other
ACROC personnel involved (such as Lindahl).
Young met with the four nurses early in the morning of
May 29.
Young started the meeting by expressing his dissatisfaction
with the way ACROC’s employees had behaved over the
past year or so. Young spoke of ‘‘bitching between employ-
ees,’’ ‘‘back biting,’’ ‘‘playing one physician against an-
other,’’ and the formation of ‘‘cliques.’’ He also spoke about
‘‘rumblings’’ that he had heard about ‘‘no raise, no work,’’
when ACROC did not increase employee remuneration in
1992. Young followed that reference by complaining about
the employees’ ‘‘lack of judgment, gratitude and loyalty.’’
Young then went on to describe in detail what Cormier,
Smith, and Palmer had told him of the behavior of Buck,
Lamoreau, Shepard, and James the day before. Young made
it very plain how much he disapproved of that conduct, fo-
cusing on the fact that the nurses had aired their complaints
while they were near patients. Lamoreau tried to give her
own account of the events of May 28, but Young cut her off,
saying that he believed Smith.
It was at that point that Young told the four nurses that
they were fired.
Young proceeded to say that each of the four could none-
theless remain employed by ACROC if they followed a set
of rules. ‘‘Here are the rules,’’ Young said, ‘‘take them or
leave them.’’ Some of the ‘‘rules’’ that Young then spoke
about are not alleged to violate the Act in any respect. They
involved such things as acting ‘‘like professionals’’ toward
both patients and coworkers and being willing to treat how-
ever many patients happened to be scheduled on a given
day—even an extraordinarily large number.
Two other of the rules enunciated by Young, however,
raise the question of whether ACROC ‘‘conditioned the re-
employment of the [four] employees . . . on their waiving
their Section 7 rights,’’ in the words of the General Coun-
sel’s complaint.
1. If the employee had a complaint, she was to bring
it to Young, ‘‘and no one else.’’ The ‘‘no one else’’
specifically included Lindahl and Martin (the two
ophthalmologists whom ACROC employed). Young’s
words in that respect were: ‘‘If I hear of you going
to Dr. Martin or Dr. Lindahl complaining about office
policy, it’s over.’’
2. The ‘‘gossiping and complaining’’ between the four
nurses had to stop immediately.
Shepard told Young that she was not willing to comply
with the rules he had just described. She left. Lamoreau went
with Shepard.
James agreed to Young’s conditions and was still em-
ployed by ACROC as of the hearing.
Buck agreed to Young’s conditions but advised him that,
for reasons unrelated to anything Young had said, she was
considering leaving ACROC for a job in Portland, Maine.
Buck did leave ACROC in July (1992).
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 684–685
(3d Cir. 1964).
IV. DID ACROC VIOLATE THE ACT WHEN YOUNG FIRED
THE FOUR NURSES
It was the behavior of the four nurses on May 28 that pre-
cipitated Young’s action against them. That behavior, in
summary, was:
Buck, within earshot of patients, complaining about the
schedule change to Cormier.
Buck and Lamoreau, within earshot of a patient, complain-
ing to one another about the schedule change.
Lamoreau, sounding exasperated, telling Lindahl about the
schedule change while both were standing next to a patient
in the operating room.
Shepard, within earshot of patients, complaining to Palmer
about the schedule change.
Shepard and James, within earshot of patients, commu-
nicating to one another about the schedule change.
One question, then, is whether that behavior is the kind
that is protected by Section 7 of the Act.
My conclusion is that, for two reasons, that behavior was
unprotected.
In many circumstances employee discussions about sched-
uling are protected. See, e.g., K Mart Corp., supra. But gen-
erally, where the employee activity at issue consists only of
talk, for that activity to be deemed protected by Section 7
‘‘it must appear that it was engaged in with the object of ini-
tiating group action.’’ Meyers Industries, 281 NLRB 882
(1986) (Meyers II). Mushroom Transportation,2 which is
cited with approval by Meyers II, puts it this way:
We look in vain for evidence that would support a
finding that [the discharged employee’s] talks with his
fellow employees involved any effort on his or their
part to initiate or promote any concerted action . . . .
It follows that, if we were to hold that [the discharged
employee’s] conversations constituted concerted activ-
ity, it could only be on the basis that any conversation
between employees comes within the ambit of the ac-
tivities protected by the Act provided it relates to the
interests of the employees. We are unable to adopt this
view.
It is true that some Board cases can be read as holding
that talk among employees about conditions of employment
is, even without evidence of any intent to engage in con-
certed action, activity that Section 7 protects. See Trayco of
S.C., 297 NLRB 630 (1990); U.S. Furniture Industries, 293
NLRB 159 (1989). But those cases concern discussions by
employees of wage levels. And discussions among employ-
ees of their wages ‘‘are inherently concerted activity clearly
protected by Section 7 of the Act.’’ Automatic Screw Prod-
ucts Co., 306 NLRB 1072 (1992). The utterances here at
issue, of course, were unrelated to wages.
Nothing in the record suggests that any of the four nurses
engaged in any of the behavior at issue ‘‘with the object of
initiating group action.’’ Each of the four was angry and
upset by the schedule change, and each simply reacted out
loud to the news. That does not constitute concerted activity.
See Adelphi Institute, 287 NLRB 1073 (1988); Daly Park
Nursing Home, 287 NLRB 710 (1987).
Compare the circumstances at hand to those in, for exam-
ple, Circle K Corp., 305 NLRB 932 (1991) (employee cir-
culated a letter); Whittaker Corp., 289 NLRB 933 (1988)
(employee criticized management in the course of a meeting
called by management); Pontiac Osteopathic Hospital, supra,
284 NLRB at 450–454 (fake company newsletter criticizing
management).
A different question would be presented had some sort of
group action regarding scheduling been in the works as of
May 28. Then one might infer that at least some of the re-
marks by the four nurses were in furtherance of that action.
See, e.g., Health Care Corp., 306 NLRB 63 (1992), enf. de-
nied on other grounds 142 LRRM 2728 (1993); Zack Co.,
278 NLRB 958 (1986); The Loft, 277 NLRB 1444 fn. 2
(1986). But the record contains no indication of any such
previously contemplated group action. The four nurses did
previously discuss with one another and with other employ-
ees, in the ‘‘team’’ setting (touched on earlier), various con-
cerns they had about their terms and conditions of employ-
ment, including scheduling issues. But there is no hint that
the utterances on May 28 had any connection with those ear-
lier, team, discussions.
The circumstances might also be different if Young had
mistakenly thought that the four were engaged in some sort
of group action on May 28. (See, e.g., Mashkin Freight
Lines, 261 NLRB 1473, 1476 (1982).) In this regard, the
General Counsel contends that Young’s decision to call
Buck, James, Lamoreau, and Shepard to his office together
evidences a belief on Young’s part that when each of the
four nurses sounded off about the schedule change, each was
acting as part of a group. But Young’s decision to meet with
the four makes sense simply in terms of timing. That is, the
night before three employees separately told him of what
they considered the misbehavior of Buck, James, Lamoreau,
and Shepard. And as those three—Cormier, Smith, and Palm-
er—described that misbehavior, there was nothing about it
that indicated a group purpose. I suppose it would have been
possible for Young nonetheless to jump to the conclusion
that the four nurses were trying to stir up group action by
their behavior on May 28. But the record does not suggest
that he did.
In any event, I would conclude that the behavior on May
28 of three of the four nurses (Buck, Lamoreau, and
Shepard) would be unprotected even if each, by her utter-
ances, did intend to initiate group behavior (or if Young
thought they did). Young’s outrage stemmed largely from the
fact that the nurses had sounded off in the presence of pa-
tients. And, as discussed earlier, ACROC had in force a valid
rule providing that: ‘‘It is totally unacceptable for an em-
ployee to discuss any grievances within earshot of patients.’’
Whether because of that rule or otherwise, each of the four
nurses knew very well that Young did not want employees
to discuss perceived management failures in the presence of
patients.
The General Counsel contends that a reason that Young
fired the four nurses is that they violated this within-earshot-
of-patients rule and the ACROC rule that limited with whom
employees could discuss their grievances. The General Coun-
sel’s point is that an employer violates the Act if the em-
ployer fires an employee for violation of an unlawful rule.
But (1) Young was not thinking in terms of ACROC’s OPM
rules when he decided to fire the four nurses; and (2) as dis-
229AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER
3 Upon their discharge by ACROC, Lamoreau and Shepard applied
to Maine’s Bureau of Employment Security (BOES) in order to ob-
tain unemployment benefits. ACROC opposed their claims, and the
BOES held a hearing in the matter. At the hearing in this proceed-
ing, the General Counsel moved for the introduction of documents
associated with Lamoreau’s and Shepard’s BOES claims. ACROC
opposed the motion on the ground that, under Maine law, informa-
tion submitted to the BOES may not be used in any other proceed-
ing. (On brief ACROC cites 26 M.R.S.A. § 1047.) I granted the
General Counsel’s motion. As it happens, I have not found the docu-
ments to be useful. But I remain of the view that my ruling was
correct. ACROC cites no Federal law authorizing me to give effect
to the Maine statute in question. And absent such Federal law, the
Maine statute may not be applied so as to limit the scope of NLRB
proceedings. U.S. Const., Art. VI; McCulloch v. Maryland, 17 U.S.
159, 213 (4 Wheat. 316, 436) (1819); cf. Garner v. Teamsters, 346
U.S. 485, 500–501 (1953).
cussed above, my conclusion is that the within-earshot-of-pa-
tients rule is not unlawful.
The record does show that, even prior to May 28, Young
was dissatisfied with, among other things, the four nurses’
‘‘lack of . . . gratitude and loyalty’’ in that they complained
to one another about the way ACROC was run. And, in
Young’s discussion leading up to his telling the four that
they were fired, he spoke of that ‘‘bitching’’ and, addition-
ally, referred to ‘‘remarks [that had] been made [about] no
raise, no work.’’
In this regard, I find that had Young not already been un-
happy about these facets of the four nurses’ behavior, he
would not have fired them on May 29. That, in turn, raises
the question of whether this earlier behavior was protected.
Of most concern here is that reference by Young to ‘‘re-
marks’’ (presumably uttered by one or more of the four
nurses) about ‘‘no raise, no work.’’ After all, where an em-
ployee says ‘‘no raise, no work,’’ in most contexts that com-
munication itself would seem to be evidence of an ‘‘effort
. . . to initiate or promote . . . concerted action,’’ in the
words of Mushroom Transportation. (And, of course, the
statement addressed the ‘‘vital term and condition of employ-
ment’’ of salaries. Automatic Screw Products, supra.) But be-
cause the record tells us nothing of the context in which any
employee uttered those words (or what Young believed the
context to be) or of the context of any of the other com-
plaints to which Young referred, I am unable to conclude
that a reason that Young fired the four nurses was their pre-
May 28 protected activity.
V. DID ACROC VIOLATE THE ACT WHEN YOUNG
ESTABLISHED CONDITIONS FOR THE REEMPLOYMENT OF
THE FOUR NURSES
After firing the four nurses, Young told them that he
would reemploy them, but only if they agreed that they
would bring their complaints to Young and to ‘‘no one
else,’’ that they would not raise any of their concerns with
Lindahl or Martin, and that all ‘‘gossiping and complaining’’
between the four would cease.
These conditions, which essentially were rules by which
the four would have to abide, obviously violated Section
8(a)(1). See K Mart Corp., supra; The Loft, supra.
First, physicians Lindahl and Martin were both employees
of ACROC. Young thus prohibited each of the four nurses
from expressing to two other employees any dissatisfaction
about ACROC’s treatment of employees.
Second, the demand that the nurses bring their complaints
only to Young also amounted to a prohibition against com-
munications with other employees even when those commu-
nications were of the kind the Act protects.
Third, what is ‘‘gossiping and complaining’’ to an em-
ployer might very well reasonably be considered by an em-
ployee to be an effort to initiate group action about terms
and conditions of employment. Thus a generalized prohibi-
tion on ‘‘gossiping and complaining’’ also violates the Act.
It hardly need be said that ACROC violated the Act when
Young conditioned the reemployment of the four nurses on
their agreement to abide by unlawful rules. See, e.g.,
Garman Construction Co., 287 NLRB 88, 100–101 (1987)
ACROC argues that the four nurses should reasonably
have understood that Young in fact was demanding only that
they discuss their grievances outside the presence of patients.
But the record shows that Young did not mean to limit his
conditions in that way, that the four nurses did not under-
stand Young to mean that, and that Young’s words could not
reasonably be so interpreted.
ACROC also argues that Lamoreau and Shepard would
have refused reemployment even had Young’s conditions not
limited with whom they could discuss grievances. And it is
clear that Shepard was primarily concerned about Young’s
insistence that the four nurses comply with whatever sched-
ule Young might establish. But it was up to ACROC to show
that Lamoreau and Shepard would have refused reemploy-
ment with ACROC even had Young not imposed the unlaw-
ful conditions discussed above. ACROC did not carry that
burden of proof.
To summarize, ACROC did not violate the Act when
Young fired Buck, James, Lamoreau, and Shepard. But
ACROC did violate Section 8(a)(1) when Young offered to
reinstate the four nurses if, but only if, they agreed to abide
by rules under which they would be prohibited from engag-
ing in activity that the Act protects.
Additionally, ACROC violated Section 8(a)(1) of the Act
by establishing and maintaining the following rules govern-
ing employee behavior:
No office business is a matter for discussion with
spouses, families or friends.
All grievances are to be discussed in private with the
office manager or physicians.3
IV. THE REMEDY
ACROC failed to reemploy Lamoreau and Shepard solely
because the two refused to agree to conditions that Young
imposed, some of which conditions were unlawful. The rec-
ommended Order accordingly requires ACROC to offer to
reemploy the two nurses and to make them whole for any
loss of earnings and other benefits that they suffered as a re-
sult of such unfair labor practice. Loss of earnings and bene-
fits shall be computed on a quarterly basis from May 29,
1992, to the date of a proper offer of reemployment, less any
interim net earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The recommended Order also requires ACROC to cease
and desist from its unlawful actions, to rescind its unlawful
rules, and to notify its employees of the requirements of the
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board’s Order. In that last regard, the General Counsel asks
that ACROC be required to post notices in its satellite clinics
as well as in ACROC’s Presque Isle facility. The rec-
ommended Order does require postings of the notice in the
satellite offices, but only to the extent that ACROC cus-
tomarily posts notices to employees in them.
[Recommended Order omitted from publication.]