Vencare Ancillary Services, Inc. v. National Labor Relations Board

*The Honorab le Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0439P (6th Cir.)
File Name: 03a0439p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
VENCARE ANCILLARY
SERVICES, INC.,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent/Cross-Petitioner.
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Nos. 01-2165/2300
On Petition for Review and Cross-Application
for Enforcement of an Order of the National
Labor Relations Board.
Nos. 25-CA-26096; 25-CA-26096-2
Argued: October 23, 2003
Decided and Filed: December 11, 2003
Before: KENNEDY and GIBBONS, Circuit Judges;
ALDRICH, District Judge.*
2 Vencare Ancillary Serv.,
Inc. v. NLRB
Nos. 01-2165/2300
1After the trial in this case, Vencor, Inc. filed for Chapter 11
bankruptcy. It has since emerged with a new name, Kindred Healthcare,
Inc.
_________________
COUNSEL
ARGUED: John V. Nordlund, Fairfax, California, for
Petitioner. Meredith L. Jason, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent.
ON BRIEF: John V. Nordlund, Fairfax, California, for
Petitioner. Meredith L. Jason, Aileen A. Armstrong,
Kira Vol, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent.
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OPINION
_________________
KENNEDY, Circuit Judge. This case presents an appeal
from the Board’s order finding that Petitioner--Cross-
Respondent Vencare unlawfully discharged five employees
for engaging in a protected activity under the National Labor
Relations Act (“Act”). Petitioner argues that the Board erred
in several respects, including its holding that the employees’
conduct did not constitute an unprotected partial strike. We
deny the enforcement of the Board’s order.
BACKGROUND
Petitioner was a subsidiary of Vencor, Inc., a national
health care provider based in Louisville, Kentucky that
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

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2Norman deC aussin was the only employee not affected by the wage
cut.
3They elected the name “Vencare Five” since Kanth-Bohre dropped
out because of concerns over his immigration status. Traci O’Rourke
signed the letter unaware that it contained the threat to stop seeing
patients. Upon learning of that “detail” at the June 23 mee ting with
Stuart, she went back to seeing the patients.
4The employees testified at the hearing before the administrative law
judge that the group only wanted to reverse the wage adjustm ent; it
merely raised the issues such as work load and scheduling, to support
their claim that the wage adjustment was unwarranted.
the on-site supervisor of Petitioner’s employees at Hermitage,
including physical therapists, physical therapy aides, speech
and language therapists, and rehabilitation technicians. The
Hermitage therapists were paid hourly wages rather than a
salary, but did not punch a time clock. Instead, they each
filled out a daily activity report (“DAR”) each evening,
describing that day’s work. Petitioner calculated the
therapists’ pay according to the number of hours they claimed
on their DARs.
On May 29, 1998, Petitioner announced wage reductions
for its rehabilitation employees, effective July 1. On the same
day, Stuart met with his employees to explain the wage
changes. The employees, upset by the news, began
discussing among themselves in early June what actions to
take to reverse the decision. On Friday, June 19, a group of
the rehabilitation employees met after work at Moreland Park,
near Hermitage. This group included Norman deCaussin,2
Evonne Higdon, Barbara Thomas, Lisa Winkler, Nil Kanth-
Bohre, and Martha Severs (“Vencare Five.”)3 At the meeting,
the group drafted a letter containing their demands related to
the wage reductions and raising other issues, including work
load and scheduling.4 The group selected deCaussin to
represent them at the meeting with Stuart on June 23.
4 Vencare Ancillary Serv.,
Inc. v. NLRB
Nos. 01-2165/2300
5DeCa ussin, Higdon and T homas acknowledged that the group
informed Stuart tha t they were going to stop seeing p atients but did not
testify that the group would continue to do other work.
6The employees told Stuart that the therapists who were refusing to
see patients did not expect to be paid that day, and none of the five filled
out a D AR for that T uesday.
7Only Thoma s actually told Stuart tha t she would quit. Thom as and
Higdon testified, however, that they not only intended to resign, but
considered themselves as having already resigned before being informed
of their termination.
DeCaussin told Stuart that the employees were going to
refuse to see patients that day until someone from upper
management met with them to discuss their issues.
DeCaussin also said that the group would remain on the
premises. Severs testified that the group informed Stuart that
they “were going to . . . do other work such as paper work
until corporate agreed to talk to [them].”5 No one said they
were on strike, nor were the terms “strike” and “work
stoppage” ever used. Stuart told them he would fax the letter
to Kevin Mack, his superior. He also asked the Vencare Five
to continue seeing patients until he received a response from
the upper management. The group refused and returned to the
therapy office to do paperwork and other projects.6 At some
point that morning, Thomas told Stuart that if the issue was
not addressed, she would quit.7
Over the course of the morning of June 23, Stuart met
individually with each employee who was refusing to see
patients. He explained that their refusal to see patients was an
entirely different matter from their grievance letter, and that
refusing to see patients could have serious consequences for
their jobs. Around noon, deCaussin told Stuart that he was
not feeling well and was going to go home. He also said that
if Stuart needed anything, he should call deCaussin at home.
The other four employees told Stuart about the same time that

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8The ALJ found that Petitioner did not violate the Act because the
employees’ work stoppage was unprotected. The ALJ found that the
employee group was a “labor organization” within the meaning of Section
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
a work stoppage a t a healthcare institution. However, the ALJ rejected
Petitioner’s alternative argument that the employees had engaged in an
unprotected partial strike.
they were taking “their designated lunch,” but that they would
return. When they returned from their lunch break, Stuart
told them that he heard from management, and had been
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
picket the Hermitage facility. They decided not to do so.
On June 24, they met again and drafted letters which were
faxed to corporate management, in which they requested a
meeting to address their grievances. On June 24, Petitioner
decided to terminate the employees who refused to see
patients for insubordination. Stuart called all five employees
on June 24 to schedule individual meetings with them the
following morning. The employees telephoned each other
and agreed to meet with the management only as a group.
When they arrived at Hermitage the next morning, they
informed Stuart they would only meet as a group. Stuart then
told all of them at once that they were being terminated for
insubordination due to their refusal to see patients on June 23.
Nearly eight months later, on February 12, 1999, Petitioner
sent each of the five discharged therapists a paycheck for
Tuesday, June 23.
This case originated with an unfair labor practice charge,
filed against Petitioner by Severs on September 24, 1998.
The General Counsel issued a complaint on October 30, 1998.
Following a hearing, an administrative law judge dismissed
the complaint on May 28, 1999.8 Petitioner and the General
Counsel both excepted to the judge’s decision before the
6 Vencare Ancillary Serv.,
Inc. v. NLRB
Nos. 01-2165/2300
Board. On August 6, 2001, the Board issued a Decision and
Order reinstating the complaint, finding that Petitioner had
violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)).
STANDARD OF REVIEW
Under the Act, the scope of this Court’s review of the
Board’s findings is limited. First Healthcare Corp. v. NLRB,
344 F.3d 523, 528 (6th Cir. 2003). More specifically, “the
findings of the Board with respect to questions of fact if
supported by substantial evidence on the record considered as
a whole shall be conclusive.” 29 U.S.C. § 160(e). “Evidence
is considered substantial if it is adequate, in a reasonable
mind, to uphold the decision.” Turnbull Cone Baking Co. of
Tennessee v. NLRB, 778 F.2d 292, 295 (6th Cir. 1985) (per
curiam)(citing Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951)). Although this Court “should consider the
evidence contrary to the Board’s conclusions,” it “may not
conduct a de novo review of the record.” Id. (citing Union
Carbide Corp. v. NLRB, 714 F.2d 657, 600 (6th Cir. 1983)).
“When there is a conflict in the testimony, ‘it is the Board’s
function to resolve questions of fact and credibility,’ and thus
this court ordinarily will not disturb credibility evaluations by
an ALJ who observed the witnesses’ demeanor.” Id. (quoting
NLRB v. Baja’s Place, 733 F.2d 416, 421 (6th Cir. 1984)).
“The Board’s application of the law to particular facts is also
reviewed under the substantial evidence standard. . .” Id.
(citations omitted). However, “[i]f the Board errs in
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.
NLRB, 441 U.S. 488, 497 (1979)).
ANALYSIS
On appeal, Petitioner argues that the refusal by the Vencare
Five to see patients was unprotected by the Act for two
reasons: (1) it was a partial strike; and (2) the group failed to

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

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

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

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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.

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