Operations In Fiscal Year 1988 - National Labor Relations Board

58 Fifty-Third Annual Report of the National Labor Relations BoardIn Daly Park Nursing Home, 2 the panel majority found, inagreement with the administrative law judge, that the respondentdid not violate Section 8(a)(1) when it reduced employee GwenHerald's workweek for discussing with other employees the terminationof employee Gail Davis.The record showed that Herald remarked to other employeesthat the discharge of fellow nurses aide Davis was "unfair" andthat it was a shame Davis could not hire a lawyer and fight it.When another employee commented that Davis would lose alegal fight to the respondent's wealthy owners, Herald agreedand said she hoped Davis would at least be able to receive unemploymentcompensation. Shortly thereafter, Herald was informedthat she was being transferred to the day shift and that herschedule was being reduced from 5 to 3 days per week.The panel majority agreed with the judge that Herald's transferand the reduction of her workweek were attributable "to herconduct with respect to the termination of Davis on 9 May."However, the judge concluded that Herald's discussions regardingthe Davis discharge did not constitute concerted activityunder Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd.sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). TheBoard has defined the term "concerted activity" as activity that"encompasses those circumstances where individual employeesseek to initiate or to induce or to prepare for group action, aswell as individual employees bringing truly group complaints to. the attention of management."Accordingly, the panel majority concluded that the standardfor determining the existence of concerted activity was not metin this case. There was no evidence that Herald or any of theemployees with whom the Davis discharge was discussed contemplateddoing anything about the discharge. Nor was thereevidence that the respondent suspected such motivation when itreduced Herald's workweek. Although Herald expressed heropinion that it was a shame Davis could not hire a lawyer tofight the discharge, she readily agreed with another employee'sopinion that Davis would lose such a fight to the respondent'swealthy owners. There was not even the suggestion that the employeesmight attempt to give mutual aid or protection to Davisby encouraging her to institute legal action to challenge her termination..Member Johansen, dissenting in part, would have found thatno matter what "Herald was intending, contemplating, or referringto, she was engaged in actual concerted activity when shespoke with her fellow employees on 12 May" regarding Davis'discharge. In his view, discussing the termination of a fellow employee(certainly a condition of employment) and the possibilityof obtaining legal assistance is action for the mutual aid and pro-2 287 NLRB No. 73 (Chairman Dotson and Member Babson; Member Johansen dissenting in part).