## Facts

- A nursing home operated during a severe heat wave without air conditioning.
- Residents showed signs consistent with overheating; four residents were sent to a hospital with dehydration.
- Nurses discussed the heat conditions and their effects on residents and the workplace, including lack of bottled water for staff.
- Two nurses jointly decided that one of them would call a state patient-care hotline to report the conditions.
- The calling nurse falsely identified herself as a resident’s relative when making the report, but the substance of the complaint concerned the facility’s heat-related conditions.
- Management learned of the report and disciplined the nurses (including discharge or similar adverse action).
- The NLRB General Counsel alleged the discipline interfered with employees’ rights under NLRA § 7 and violated NLRA § 8(a)(1).

## Issues

1. Whether the nurses’ hotline report, arising from group discussion and a joint decision, constituted “concerted” activity under NLRA § 7.
2. Whether reporting dangerous patient-care conditions to a state hotline was activity “for mutual aid or protection” under NLRA § 7 when the nurses stated their motivation was solely patient welfare.
3. Whether the caller’s misrepresentation of identity removed the activity from NLRA § 7 protection.
4. Whether disciplining the nurses because of the report violated NLRA § 8(a)(1).

## Decision

- The Board found the nurses engaged in concerted activity by discussing conditions and jointly deciding to contact the hotline, even though only one nurse placed the call.
- The Board held the report was for “mutual aid or protection” because the complained-of conditions had an objective, direct relationship to employees’ working conditions in a health-care setting.
- The Board concluded the identity misrepresentation was not so egregious or malicious as to forfeit protection, where the complaint’s substance was not shown to be false.
- The Board held the employer violated NLRA § 8(a)(1) by disciplining the nurses for engaging in protected concerted activity and ordered standard remedial relief.

## Legal Principles

- Activity is “concerted” when employees act together or through group decision-making, even if a single employee carries out the final act.
- Employee advocacy through external channels, including complaints to governmental agencies, may be protected when it seeks to improve employees’ terms and conditions of employment.
- In health-care settings, employee complaints about patient-care and safety conditions can qualify as “mutual aid or protection” where there is a direct nexus between the complaint and working conditions; employees’ stated subjective motive is not controlling if the activity objectively implicates workplace conditions.
- Section 7 protection may be lost for conduct that is egregiously disloyal or maliciously false, but a non-malicious identity misrepresentation that does not render the underlying complaint false does not automatically forfeit protection.
- Employer discipline imposed because of protected concerted activity interferes with Section 7 rights and violates NLRA § 8(a)(1).

## Conclusion

The Board determined that nurses who jointly reported extreme-heat conditions affecting residents to a state patient-care hotline engaged in protected concerted activity with a sufficient connection to workplace conditions; disciplining them for that report unlawfully interfered with Section 7 rights in violation of Section 8(a)(1), and the employer was ordered to provide remedial relief.


Orchard Park Health Care Ctr., 341 N.L.R.B. 642 (2004)