*

The Honorable 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

1

After 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.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. This case presents an appeal

from the Board’s order finding that Petitioner--CrossRespondent 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
Nos. 01-2165/2300 Vencare Ancillary Serv.,

Inc. v. NLRB

3

2

Norman deCaussin was the only employee not affected by the wage

cut.

3

They 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 meeting with

Stuart, she went back to seeing the patients.

4

The employees testified at the hearing before the administrative law

judge that the group only wanted to reverse the wage adjustment; 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 KanthBohre, 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

5

DeCaussin, Higdon and Thomas acknowledged that the group

informed Stuart that they were going to stop seeing patients but did not

testify that the group would continue to do other work.

6

The 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 DAR for that Tuesday.

7

Only Thomas actually told Stuart that she would quit. Thomas 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
Nos. 01-2165/2300 Vencare Ancillary Serv.,

Inc. v. NLRB

5

8

The 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), which

requires that a labor organization give 10 days notice before engaging in

a work stoppage at 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
Nos. 01-2165/2300 Vencare Ancillary Serv.,

Inc. v. NLRB

7

9We accordingly do not address the issue of reinstatement and back

pay, including the question of whether two of the five employees quit

before they were told they were fired. We also do not address 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 kindwhose 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
Nos. 01-2165/2300 Vencare Ancillary Serv.,

Inc. v. NLRB

9

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 alsoN.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

10Respondent’s discussion of cases involving sit-down 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 1355 (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 complete 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) (“Not every work stoppage is protected

activity, however; 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
Nos. 01-2165/2300 Vencare Ancillary Serv.,

Inc. v. NLRB

11

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 (“For

example, an employee may voluntarily continue to work at the end of the

shift. He may be a pieceworker, he may desire to finish an assigned task

or he may wish to correct errors, paste work tickets, prepare time reports

or other records. The reason is immaterial.”)

12See, e.g., NLRB v. Reynolds & Manley Lumber Co., 212 F.2d 155

(5th Cir. 1954) (employee walked off the job and left a potentially

explosive boiler 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 destruction during

strike period); Marshall Car Wheel & Foundry Co., 107 N.L.R.B. 314

(1943), enf. denied, 218 F.2d 409, 413 (5th Cir. 1955), supplemented, 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
Nos. 01-2165/2300 Vencare Ancillary Serv.,

Inc. v. NLRB

13

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.