¹ 114 Lab. Rel. Rep. (BNA) 99, 99 (Aug. 3, 1983) (quoting report issued by United Food and Commercial Workers and Service Employees International Union to Michigan Governor James J. Blanchard which stated that Beverly Enterprises is involved in the “corporatization” of health care in America).

² Davitt, Nursing Homes’ Top Priority: Caregiving or Profitmaking, 4 Del. Law 14, 14 (1985) (“Before Medicare and Medicaid, most nursing homes were public institutions or non-profit homes, often called ‘homes for the aged.’ Once federal and state monies became available for nursing home care, the new industry evolved rapidly.”). It is estimated that by 1990, the top five to ten nursing home chains will control one half of all nursing home beds in the United States, with Beverly Enterprises, a California-based corporation, alone controlling one third of the market. 114 Lab. Rel. Rep. (BNA), supra note 1, at 99. “In 1982 alone sales rose a steep 68% to $816 million, making [Beverly Enterprises] the second fastest-growing company in FORTUNE’S ranking of the largest diversified service companies.” Moore, Way Out Front in Nursing Homes, Fortune, June 13, 1983, at 142.

³ See 57 White Collar Rep. (BNA) No. 10, at 251 (1985) (“[As of March, 1985] the campaign to organize Beverly Enterprises, the nation’s largest nursing home chain, [was] experiencing an overall 71 percent win rate and [had] brought to 88 the number of organized Beverly homes, the unions targeting Beverly report. That win rate [compared] to an average union victory rate of less than 50 percent for all union elections.”).

⁴ Pub. L. No. 93-360, 88 Stat. 395 (codified at 29 U.S.C. § 152(2)(g) (1974)). The Amendments added section 2(14) to the NLRA: “The term ‘health care institution’ shall include any hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged persons.” See Stapp, , Ten Years After: A Legal Framework of Collective Bargaining in the Hospital Industry, 2 Hofstra Lab. L. J. 63, 63-64 (1984)Google Scholar (“Under the original National Labor Relations Act (NLRA), collective action by hospital workers was protected. However, as part of the Taft-Hartley Act in 1947, Congress excluded non-profit hospital workers from protection under the NLRA …. In 1974, Congress enacted the 1974 Health Care Amendments which established, among other things, the right of non-profit hospital workers to organize and strike. The purpose of the Amendments was twofold: to grant non-profit hospital workers the benefit of collective organization and bargaining, and at the same time to try to assure the continued supply of quality health care.”).

⁵ 29 U.S.C. §§ 151-69 (1982). For a discussion of the Act and the rights protected by it, see infra notes 24-31 and accompanying text.

⁶ See, e.g., S. Rep. No. 766, 93rd Cong., 2d Sess. 3946 (1974), where the conference committee “recognized that the needs of patients in health care institutions required special consideration” so the provision requiring notice before strikes or picketing was added to guarantee that arrangements could be made for the continuity of patient care.

⁷ “[A] labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention ….” 29 U.S.C. § 158(g) (1982).

⁸ See Feldman, & Scheffler, , The Union Impact on Hospital Wages and Fringe Benefits, 35 Indus. & Lab. Rel. Rev. 196, 198 (1982)CrossRefGoogle ScholarPubMed (“Immediate increases in hospital union activity occurred after the passage of Public Law 93-360. Between June 30, 1973 and June 30, 1974 the NLRB reported 461 representation petitions filed in the health care industry, whereas during the following fiscal year 1,659 were reported. The number of hospitals with at least one signed collective bargaining agreement rose from 912 in 1974 to 1,635 in 1977, then representing 23 percent of all U.S. hospitals.”).

⁹ Due to their greater deference to patient care concerns, hospital professionals initially approached the prospect of unionization with greater circumspection than their nonprofessional colleagues. Cf. Feldman & Scheffler, supra note 8, at 204. (“There is a considerable amount of institutional evidence that the unions representing hospital nonprofessionals, however, are more aggressive than the unions representing professionals. Until 1968, for example, the American Nurses’ Association (representing RNs) maintained a ‘no-strike’ policy, making the nurses bargain from a ‘position of extreme weakness.’ These institutional differences appear to outweigh any other factors associated with union success among different hospital occupations.”) See generally O’Rourke, and Barton, , The Politics of Nursing, in Health Care Labor Law 86 (1981)Google Scholar (As professionals, some nurses are willing to forego the improved wages and working conditions that unionization might provide them, out of the belief that “it is their duty to make do because otherwise patients would suffer.”).

¹⁰ See, e.g., Wurf, Union Clout in Health Care Reform, 20 The New Physician 318, 320 (1971) (“When contract provisions such as the career ladders and on-the-job training sought by AFSCME begin to appear in large numbers of hospital contracts, the present system of health care delivery in America will be altered drastically for the better, whether measured by physician, patient, or employee.”); ANA’s Collective Bargaining Efforts Aim At Quality Care, Hospitals, Dec. 16, 1973, at 17. (“The American Nurses’ Association (ANA) announced in November that it is mounting a campaign to organize the nation’s 800,000 active registered nurses for the purpose of professional collective bargaining. Rosamond C. Gabrielson, ANA President, said that the collective bargaining will be focused on improving the quality of nursing care, adding that the association’s past bargaining efforts have focused primarily on improving salaries, fringe benefits, and working conditions and have made it possible to broaden the scope of bargaining.”); Schorr, They’d Better Believe Nurses Will Become More Aggressive In Fighting Against Poor Quality Care, 74 American Journal of Nursing 1415, 1415 (1974) (“Sound management and effective administration are essential so that safe, effective care and treatment can be provided for patients …. But management gets gold stars only if its product, its reason for being, deserves them. In hospitals, that product is patient care and that’s what the [striking] nurses in the [San Francisco] Bay area were seeking to improve.”). Article responding to American Hospital Association Board of Trustees’ statement that the union adopted the banner of quality care solely as a campaign strategy. Id. at 1415.

¹¹ See Quality of Care is Central Issue in Beverly Organizing Campaign, 5 UFCW Action, Nov.-Dec. 1983, 12, 12 (“The traditional organizing issues have always primarily been wages and benefits. The Beverly organizing campaign breaks tradition …. [W]hen the campaign was kicked off [in January, 1983] it was aptly named the Beverly Employees’ Cooperative Action and Reform Effort (CARE), and the link between working conditions and patient care was stressed.”). Note that in February, 1984, the UFCW and SEIU agreed to call off their “corporate campaign” against Beverly Enterprises, after the company agreed to maintain a “noncoercive” atmosphere during election campaigns. The unions also agreed to refrain from “[singling] out the company in particular when taking stands on such issues as regulation of nursing homes or legislation.” The joint announcement of the agreement noted that it is based “upon a recognition that both labor and management are committed to providing quality health care for residents and dignity and decent standards for employees.” 56 White Collar Rep. (BNA) No. 10, at 233 (1984).

¹² Coulson, , Modern Grievance Procedures, in Health Care Labor Law 162 (1981)Google Scholar (“Because hospital and health care institutions are personal service institutions, they rely heavily on the good attitudes of their staff to provide effective service. Their services are delivered directly to patients by their employees.”).

¹³ See generally Joint Commission on Accreditation of Hospitals, Accreditation Manual for Long Term Facilities (1980).

¹⁴ See, e.g., Little Forest Medical Center, 69 Lab. Arb. (BNA) 671, 671-72 (1977) (“It is obvious that a nurse’s aide has a very difficult and sometimes unpleasant job to perform and it requires a person with great patience to properly handle the job …. And in between all this and on the spot are the lowest paid, less skilled, undertrained nurse’s aides who must by law, regulation, public demand and common concern, treat these patients with kindness and never cross the line into abuse.”); Smith, A Question of Care, Part I: Hillcrest West: Care or Carelessness?, The Knoxville Journal, Feb. 25, 1985, at A8, col. 1 (“Many of them have no previous medical experience. They are trained on the job and work for little more than minimum wage …. They often are overworked and must deal with situations which are nasty and depressing at best.”) [hereinafter cited as Patient Abuse Article Series].

¹⁵ C. Stannard, Old Folks and Dirty Work: The Social Conditions for Patient Abuse in a Nursing Home (1971) (unpublished doctoral dissertation, Northwestern University). (“The occupants of the lowest positions, the aides and orderlies, who have the greatest contact with inmates share a latent culture … due to their lower social-class origins, which regards the use of force and aggression as a legitimate means of resolving conflicts …. Because of their social class and low levels of education, these people do not entertain sophisticated and complex notions about human motivation and mental illness. Their interpretations of patients’ actions are likely to be based on lay, rather than medical ideologies …. This increases their likelihood of using already established and familiar means of handling difficulties with patients, namely force.”).

¹⁶ See Comment, A Critical Analysis: The Patient Abuse Provisions of the Missouri Omnibus Nursing Home Act, 24 St. Louis U.L.J. 713, 713-14 (1981) (“Six years ago the United States Senate Special Subcommittee on Aging called the system of long-term care for the elderly ‘the most troubled, and troublesome component of our entire health care system.’ The committee found that at least half of the nation’s nursing homes were substandard, due to the presence of life-threatening conditions …. The most startling finding was that nursing home patients frequently suffer from neglect or are the targets of intentional abuse which sometimes results in injury or death.”) (citing the findings reported in Staff of Subcomm. on Long-Term Care, Senate Special Comm. on Aging, 93d Cong., 2d Sess., Nursing Home Care in the United States: Failure in Public Policy: Supporting Paper No. 1, The Litany of Nursing Home Abuses and an Examination of the Roots of the Controversy 205 (Comm. Print 1974)).

¹⁷ See, e.g., Ambassador Convalescent Center, Inc., 83 Lab. Arb. (BNA) 44, 45 (1984) (SEIU Local 79 alleged that a nurse’s aide who was discharged after he hit and rubbed soap in the eyes of a 70 year old double amputee patient was “unjustly terminated.”).

¹⁸ 29 U.S.C. §§ 151-69 (1982). For a discussion of the Act, see infra notes 24-31 and accompanying text.

¹⁹ See, e.g., Coral Gables Convalescent Home, Inc., 234 N.L.R.B. 1198 (1978) (The employer discharged a male nurse’s aide and union activist for unsatisfactory job performance, even though it had recently elevated him from a temporary to permanent position, and attempted to demonstrate the absence of pretext through the testimony of a patient’s daughter that she had found her father in an unkempt condition while in the aide’s care. The testimony of the administrator and a supervisory nurse that two other of the aide’s patients appeared “dirty, unshaven and smelly,” and additional testimony that the aide had talked back to the administrator and refused a co-worker’s request for assistance was introduced. Id. at 1200. The NLRB affirmed the finding of an 8(a)(3) violation by the Administrative Law Judge (A.L.J.) who noted that: “Even if all incidents are considered in their totality, they are not characteristic of an employee who is either incompetent or improperly motivated. To the contrary, the record indicates that [the aide] exhibited a great deal of compassion for his patients and performed his job … competently.”). Id. at 1201; County View Convalescent Hospital, JD-(SF)-40 at 6-7 (1984) (A convalescent home employer discharged a probationary employee for being “disrespectful to patients and their families” and having a “virtual vendetta against her supervisor,” shortly after it learned that she had contacted the union about a dispute with her supervisor. The A.L.J. found that the supervisor’s testimony regarding the allegedly disrespectful behavior was not credible and, in any event, the administrator had not learned of the alleged incidents prior to discharging the employee.).

²⁰ See, e.g., Garrison Valley Center, 277 N.L.R.B. No. 164 (1984) (the employee was discharged for conduct that had not been the subject of disciplinary action when involving other employees); Frostburg Village of Allegany County Nursing Home, 364 N.L.R.B. 651 (1982) (union activist was disciplined more harshly for violating the employer’s rules and regulations than another employee who engaged in similar conduct); Edgewood Nursing Center, 230 N.L.R.B. 1021 (1977), rev’d in part, Edgewood Nursing Center v. N.L.R.B., 581 F.2d 363 (3rd Cir. 1978) (union activist was discharged for administering an overdose to a patient though the employer ha d previously allowed a nurse who ha d fatally overdosed a patient to resign).

²¹ See, e.g., Americana Health Care Corp. (Barberton Manor), 252 N.L.R.B. 380 (1980); IDAK Convalescent Center of Fall River, Inc. (Crawford House), 238 N.L.R.B. 410 (1978).

²² See, e.g., Americana Health Care Corp., 252 N.L.R.B. at 380, which is discussed in detail infra at notes 37-54 and accompanying text.

²³ This setting should be contrasted to the health care setting where the interests of three parties—the employer, employee and patient—are affected. See infra notes 110-11 and accompanying text.

²⁴ National Labor Relations Act § 7, 29 U.S.C. § 157 (1982). “Employees shall have the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ….” Id.

²⁵ National Labor Relations Act § 8(a)(l), 29 U.S.C. § 158 (1982). “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Id.

²⁶ See, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).

²⁷ See, e.g., Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978).

²⁸ See, e.g., NLRB v. Babcock and Wilson Co., 351 U.S. 105 (1956).

²⁹ National Labor Relations Act § 8(a)(3), 29 U.S.C. § 158 (1982). “It shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member-ship in any labor organization ….” Id.

³⁰ National Labor Relations Act § 12(c), 29 U.S.C. § 160(c) (1982). “If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall … take such affirmative action including reinstatement of employees with or without back pay ….” Id.

³¹ See supra notes 98-109 and accompanying text.

³² Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

³³ Id. at 1086-89; see also supra note 24 and accompanying text.

³⁴ Wright Line, 251 N.L.R.B. at 1089; see also Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). Mt. Healthy, a constitutional case, served as the doctrinal underpinning for the NLRB Wright Line test. The Supreme Court held that a court must determine whether the employee’s constitutionally protected conduct was a “motivating factor” in the employer’s decision not to rehire him, and if it was, whether the employer could prove by a preponderance of the evidence that it would have reached the same decision irrespective of the protected conduct.

³⁵ Wright Line, 251 N.L.R.B. at 1089.

³⁶ See, e.g., Leisure Lodge Nursing Home, 250 N.L.R.B. 912, 919 (1980) (The A.L.J. held that a nursing home employer “was [not] justified in discharging employees in order to protect the health and safety of patients in accordance with any state or federal law …. [A] determination that there has been patient neglect is not easily made.”); Edgewood Nursing Center, 230 N.L.R.B. at 1028 (In holding that a nursing home discriminatorily discharged a union activist who had twice overdosed patients, the A.L.J. noted, “[t]he issue in this case … is not … a second medication error, but whether that error was used by Respondent as a pretext ….”).

³⁷ Americana Health Care Corp., 252 N.L.R.B. 380 (1980).

³⁸ Id. at 390-92.

³⁹ Id. at 382.

⁴⁰ Id. at 382-83.

⁴¹ Id. at 391.

⁴² Id.

⁴³ Id. at 390.

⁴⁴ Id. at 391.

⁴⁵ The A.L.J. stated that “in order to attach substantive effect to [oral and written] statements under Rule 804(5) or Rule 803(24) … such statements [must] have, in effect, ‘equivalent circumstantial guarantees of trustworthiness….’ The oral and written complaints of [the] patient … on this record, do not have such ‘equivalent circumstantial guarantees of trustworthiness.’” Id. at 389.

⁴⁶ “She was at the time, 97 years old; receiving radiation therapy and medication; at times confused and demanding; and periodically subjected to crying spells when she did not get her way.” Id.

⁴⁷ Id. at 386. (“In sum, I find that [the two patients] have truthfully related what they in fact observed and heard. One must assess the significance of their testimony in the context of their conditions of health and under the circumstances in which they were called upon to make these statements.”). But see Ambassador Convalescent Center, Inc., 83 Lab. Arb. (BNA) 44 (1984). Ambassador involved a nurse’s aide who was discharged after he allegedly hit and rubbed soap in the eyes of a seventy year old double amputee after the patient soiled his bath water. Id. at 45. The arbitrator characterized the victim’s recounting of the abusive incident shortly after its occurrence as “a present sense impression” and his identification of his assailant as an “excited utterance.” Id. at 47. In deciding whether to credit the patient’s testimony over that of the abusive aide, the arbitrator noted that the patient’s statement also was supported by circumstantial evidence, as well as testimony by friends, relatives and staff members that the patient was competent to identify the aide who had abused him. Id. The arbitrator then contrasted the employee’s self-interested motives for denying the abusive incident to the patient’s lack of motive for fabricating it. The A.L.J. concluded that, “[t]here can be no debate that ‘the interests of justice will best be served by admission of the statement into evidence,’ since otherwise, there can be no inquiry into an accusation of patient abuse, a serious matter in the nursing home context.” Id.

⁴⁸ Americana Health Care Corp., 252 N.L.R.B. at 391-92.

⁴⁹ Id. at 389-90.

⁵⁰ Id. at 391.

⁵¹ See, e.g., Ga. Code Ann. § 31-8-81 (1985). “As used in this article, the term : (1) ‘Abuse’ means any intentional or grossly negligent act or series of acts or intentional or grossly negligent omission to act which causes injury to a resident, including, but not limited to, assault or battery, failure to provide treatment or care, or sexual harassment of the resident.” [hereinafter cited as The Georgia Definition of Abuse]. Conn. Gen. Stat. § 19a-458 (1985) “ ‘Abuse’ means the willful infliction of physical pain or injury or the wilful deprivation by a caretaker of services which are necessary to the person’s health or safety.”

⁵² Americana Health Care Corp., 252 N.L.R.B. at 391-92.

⁵³ Id. at 385-86.

⁵⁴ Id. at 392.

⁵⁵ Verbal abuse of patients is commonly cited as the grounds for discharge in 8(a)(3) patient abuse cases as is inattention to patients’ “toileting” needs. See, e.g., Coosa Valley Convalescent Center, 224 N.L.R.B. 1288 (1976) (two aides were terminated for using graphically obscene language to criticize and ridicule patients); Highland Avenue Convalescent Home, Inc., 220 N.L.R.B. 998 (1975) (the employer discharged an LPN for routinely yelling and swearing at patients); IDAK Convalescent Center of Fall River, Inc., 238 N.L.R.B. 410 (1978) (employer discharged aide who swore at patients and refused to furnish bedpan to patients upon request).

⁵⁶ IDAK Convalescent Center, 238 N.L.R.B. 410 (1978).

⁵⁷ Id. at 422-23.

⁵⁸ Id.

⁵⁹ Id. at 425.

⁶⁰ Id. at 435-36.

⁶¹ Id. at 436. (The A.L.J. concluded that “[the administrator] chose to gather all of the information he could in order to build a case against the prounion employees and thereafter summarily decided to discharge them on the very day that the consent election agreement was being approved.”).

⁶² Id.

⁶³ Id. at 424. (The A.L.J. said, “[s]ince nothing was ever done concerning Vincent’s numerous complaints about the bedpan I am led to believe that management did not take those complaints seriously. It is noteworthy that these complaints had been going on for months and no action was taken until the advent of the Union and Bozeman’s involvement in the union campaign.”).

⁶⁴ See cases cited supra note 55.

⁶⁵ IDAK Convalescent Center, 238 N.L.R.B. at 425.

⁶⁶ One patient routinely would ask a supervisor which nurse’s aide was assigned to him on the night shift, and if she responded that it was one of the two allegedly abusive aides, he would respond, “Oh no! Oh my God!” Id. at 422.

⁶⁷ Id. at 423. See also R. Butler, Why Survive? Being Old In America 265 (1975). Cf. Salzman, The Old Age Wall: The Problem of Gaining Access to Nursing Home Residents, 14 Golden Gate U.L. Rev. 709, 709 (1984) (“Because bedridden patients are not turned regularly, they may develop bedsores which can become infected or gangrenous. Many nursing homes do not meet the minimal government standards for sanitation or patient care, which can result in patient injuries and deaths.”) (discussing the report of Staff Subcommittee on Long-Term Care of the Senate Special Committee on Aging, Nursing Home Care in the United States: Failure in Public Policy, Introductory Report, S. Rep. No. 1420, 93d Cong., 2d Sess. 16 (1974)).

⁶⁸ IDAK Convalescent Center, 238 N.L.R.B. at 426; see also R. Butler, supra note 67, at 265.

⁶⁹ IDAK Convalescent Center, 238 N.L.R.B. at 431.

⁷⁰ See, e.g., Park Geriatric Village, 81 Lab. Arb. (BNA) 306 (1983) (“The unanswered question is: Why did the Grievant need to take the cane away from the patient, an 85 year old woman … why did she not walk away and report to the nurse in charge that she was having trouble with the patient …? There was no need for a strong young woman such as the Grievant to have to take away the cane from a frail old woman even if she was trying to hit the Grievant with the cane; the Grievant’s story does not ring true.”).

⁷¹ Behavior modification efforts are based on the assumption of mental ability to respond to change. Cf. Comment, supra note 16, at 715 (“Most estimates show that at least fifty-five percent of all long-term care patients are mentally impaired, but at least one study places the figure at eighty percent.”).

⁷² Those states which statutorily prohibit patient abuse do not distinguish certain types of corporal punishment as permissible but rather equate all intentionally physical harm or injury to patients as abuse. See, e.g., The Georgia Definition of Abuse (defining abuse as “any intentional or grossly negligent omission or act which causes injury to a resident”); Mo. Rev. Stat. § 198.006(1) (Supp. 1980) (defines abuse as “the infliction of physical, sexual, or emotional injury or harm …”).

⁷³ IDAK Convalescent Center, 238 N.L.R.B. at 437-38.

⁷⁴ Of the 8(a)(3) patient abuse cases decided by the NLRB, only a handful were decided prior to 1980. See, e.g., Woonsocket Health Centre, 245 N.L.R.B. 652 (1979); Anna-Henry Nursing Home, 236 N.L.R.B. 1135 (1978); Edgewood Nursing Center, supra note 20; Coosa Valley Convalescent Center, 224 N.L.R.B. 1288 (1976).

⁷⁵ Wright Line, 251 N.L.R.B. 1083 (1980).

⁷⁶ See Salzman, supra note 67, at 709.

⁷⁷ Nemore, , Protecting Nursing Home Residents: Tort Actions are One Way, 21 Trial 54, 56 (Dec. 1985)Google Scholar (“Despite this litany of [patient] abuses, few tort actions have been filed against nursing homes …. [I]t is generally believed that causation is difficult to prove. The physical frailty of residents makes plausible a claim that an injury occurred through no one’s fault.”).

⁷⁸ See, e.g., NLRB v. Beth Israel Hospital, 554 F.2d 477, 481 (1st Cir. 1977), aff’d, Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978) (“Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar.”).

⁷⁹ See Nemore, supra note 77, at 11; see also Comment, supra note 16, at 721.

⁸⁰ See, e.g., Stiffelman v. Abrams, 655 S.W.2d 522 (Mo. 1983) (en bane) (executors of estate of nursing home resident brought wrongful death action after the resident died from kicks and blows administered by nursing home attendants); Free v. Franklin Guest Home, Inc., 397 So. 2d 47 (La. App. 1981) (nursing home held liable for breach of its express contractual obligations to patient who was burned and beaten by orderlies).

⁸¹ See, e.g., State Department of Health v. Tegnezian, 194 N.J. Super. 435, 477 A.2d 363 (N.J. Super. 1984) (nursing home administrator’s license revoked after she was charged with verbally and physically abusing residents); see also Note, Long Term Health Care for the Elderly: The Challenge of the Next Decade, 39 ALB. L. REV. 617, 644-45 (1975) (“Because of the large number of Medicaid patients likely to be in any facility, it is clear that the threat of Medicaid decertification, which would result in almost certain financial ruin, would force the nursing home to be cognizant of these requirements.”).

⁸² See generally Comment, supra note 16, at 716 (“This use of rather ambiguous language [in patient abuse statutes] has received support from many of those writing on the child abuse statutes.” One commentator has stated, “[s]ociety knows what abuse is, even without specific definitions ….” Another stated, “[s]urely the terms ‘abuse’ or ‘neglect’ are best left undefined. The varieties of serious abuse are all embraced by statutory language which speaks of physical injuries.”). See, e.g., The Georgia Definition of Abuse, cited supra note 51.

⁸³ See, e.g., Frostburg Village of Allegany County Nursing Home, 263 N.L.R.B. 651, 655 (1982) (employer’s handbook provided for a warning for “discourteous, inattentive or unprofessional treatment” and immediate termination for abuse); Americana Healthcare Center Memorandum to Employees (Jan. 23, 1984) (“One of the purposes of this memorandum is to make sure that all employees are aware of our policy on this subject. In our rules of conduct, contained in the employee handbook, we have expressly prohibited abusive or inconsiderate treatment of our residents. Such misconduct would include abusive, foul or disrespectful language; physical mistreatment which causes physical pain or mental anguish; and, conduct which would reasonably degrade or threaten residents. Failure to perform any other routine or prescribed aspects of nursing care will be considered as patient neglect and is also prohibited at our facility.”).

⁸⁴ Leisure Lodge Nursing Home, 250 N.L.R.B. 912 (1980).

⁸⁵ Id. at 919.

⁸⁶ Id.

⁸⁷ “Mr. Adams had considerable training and experience in the operation of nursing homes, but the relevance of much of his testimony was not demonstrated. He was not familiar with the situation as it existed [on the morning of the shutdown] … except as suggested in hypothetical questions propounded to him. Such questions assumed some facts and inferences that were not established by probative evidence.” Id. at 919 n.34.

⁸⁸ Id. at 920.

⁸⁹ Edgewood Nursing Center, 230 N.L.R.B. 1021 (1977).

⁹⁰ The Third Circuit found that the overdose was the motivating factor for the discharge. Edgewood Nursing Center, Inc. v. N.L.R.B., 581 F.2d 363, 368-70 (3d Cir. 1978). See National Labor Relations Act § 10(c), 29 U.S.C. § 160(e) (1982) for the appropriate standard of review. “The findings of the Board with respect to findings of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.”

⁹¹ The overdose was of meprobamate, a sedative.

⁹² Edgewood Nursing Center, 230 N.L.R.B. at 1022.

⁹³ Id. at 1023.

⁹⁴ Id. at 1025.

⁹⁵ Id. at 1027-28.

⁹⁶ Id. at 1028.

⁹⁷ Id. at 1025. (“[U]nlike my colleagues I am also unwilling to enter into judgments as to the seriousness of a medical error. That type of judgment is something which is best left to medical experts and in any event is not pertinent to our consideration so long as the judgment itself is not made in bad faith …. [I]t appears that [the employee’s discharge] was motivated by a genuine concern by Respondent for the health and welfare of its patients.”).

⁹⁸ See the language of Section 10(c) cited supra note 30. See also Note, , The Need for Creative Orders Under Section 10(c) of the National Labor Relations Act, 112 U. Pa. L. Rev. 69, 70 (1963)Google Scholar (“The Congressional determination to draft Section 10(c) in indefinite language rather than to formulate preordained penalties for each offense allows the Board to set the tenor of its own authority by imaginative and specific treatment of the unique circumstances surrounding each unfair practice.”).

⁹⁹ D. McDowell & K. Huhn, NLRB Remedies for Unfair Labor Practices 104 (1976) (“When an employer discharges an employee, reinstatement will be ordered if the discharge interferes with, restrains, or coerces the employees in the exercise of their rights under the NLRA or if it was intended to encourage or discourage membership in any labor organization.”).

¹⁰⁰ Id. (“The reinstatement rights of discriminatorily discharged employees are usually automatic …. Although an employee might be otherwise entitled to reinstatement, within certain bounds, an employer may properly refuse to reemploy certain individuals because they have engaged in serious misconduct. If, however, the employer is found to have condoned the alleged misbehavior, it no longer serves as a bar to reinstatement.”). Note, however, that Section 10(c) does not require reinstatement; instead, the Board is directed to “take such affirmative action including reinstatement … as will effectuate the policies of this Act.” (emphasis added).

¹⁰¹ 579 F.2d 1251 (1st Cir. 1978).

¹⁰² The prank involved the preoperative preparation of a patient who was scheduled for exploratory surgery due to jaundice of an undiagnosed origin and possible infectious hepatitis. The three nurses who were responsible for the patient’s preoperative preparation “dressed up” the sedated patient by augmenting the normal surgical garb with a plastic shower cap which they placed on his head, a brown plastic bag fitted over his feet, and a yellow gown which one of the nurses had captioned, “Yellow Bird Express.” Laughing at his bizarre appearance, the nurses then paged the patient’s wife, who was also the hospital’s Assistant Director of Nursing, to inform her that they were taking her husband to the operating room. Intercepting the stretcher en route, she noted her husband’s bizarre dress, but did not mention it to the nurses. After his surgery, the patient’s wife related her distress over the nurses’ treatment of her husband to a co-worker. Id. at 1252-53.

¹⁰³ Id. at 1255.

¹⁰⁴ See supra note 102.

¹⁰⁵ Id. at 1256. (“[T]his incident [cannot] be characterized as a slight aberration from normal conduct that the employer seized upon to use as cover for anti-union motivated discharges.”).

¹⁰⁶ Id. (“[T]o do otherwise [than reverse the NLRB reinstatement order], in these circumstances would amount to a holding that a union membership is a complete barrier to a discharge during an organizational campaign.”).

¹⁰⁷ Id. (The court noted that the hospital administrator “had [no] other choice but to discharge these nurses … [because] the ‘Yellow Bird Express’ [incident] was bound to raise serious doubts with patients and other hospital personnel as to the quality of nursing care at the hospital.”).

¹⁰⁸ See D. McDowell & K. Huhn, supra note 99, at 143 (“The courts have … ruled that even though the activity which provoked a discharge may have constituted protected activity, reinstatement may not be warranted if a basic antagonism exists between the employer and employee that makes impossible the resumption of a normal employer-employee relationship.”).

¹⁰⁹ See, e.g., Americana Health Care Corp., 252 N.L.R.B. 380, 386 (1980) (Mildred Lott, a patient at the Home during the abusive “incident … testified that … Anderson had complained to her about aide Brown’s treatment of her …. She [the patient] was afraid … she would fall and get a broken hip.”). Ambassador Convalescent Center, Inc., 83 Lab. Arb. (BNA) 44, 45 (1984) (During the course of a bath, the patient implored the aide “please don’t drown me!” right before the aide allegedly struck him in the face and rubbed soap in his eyes.). See also Smith, Patient Abuse Article Series, supra note 14 (Feb. 27, 1985), at Al (“I’ve seen patients hit … I’ve seen them thrown. I’ve had patients who would wet themselves and say, ‘Don’t hit me, don’t hit me.’ You could see it in their eyes when you walked into their room. They knew which aides were mean and which aides they could talk to.”) (quoting Peggy McWilliams, a former team leader of nurse’s aides at Hillcrest West Nursing Home).

¹¹⁰ See, e.g., NLRB v. Beth Israel Hospital, 554 F.2d at 481. Shepard, , Health Care Institution Labor Law: Case Law Developments, 1974-1978, 4 Am. J.L. & Med. 1, 13 (1978)Google Scholar (“In the area of discrimination against employees for taking part in union activities, it is important to recognize that the NLRB has not treated cases involving health care institutions differently in principle from any others. Illegal discrimination includes practices such as conditioning reemployment of a nurse on her abandoning union activities, or giving her unjustified poor work evaluations for joining the union.”).

¹¹¹ See Note, supra note 98, at 79.

¹¹² National Labor Relations Act § 6, 29 U.S.C. § 156 (1982). “The Board shall have authority from time to time to make, amend, and rescind, in the manner provided by the Administrative Procedure Act [5 U.S.C. § 551 et. seq.], such rules and regulations as may be necessary to carry out the provisions of this [Act].” Id.

¹¹³ See, e.g., Stamps v. Detroit Edison, Co., 365 F.Supp. 87, 119 (E.D. Mich. 1978), aff’d in pertinent part, sub now.. EEOC v. Detroit Edison, Co., 515 F.2d 301 (6th Cir. 1975), vacated and remanded on other grounds, 431 U.S. 951 (1977) (“[W]here, because of discrimination, black employees and rejected applicants have lost employment opportunities … it is appropriate to award them amounts of back pay sufficient to restore them to the economic position they would have been in but for the discrimination.”); see also, R. Smith, C. Craver & T. Clark, Employment Discrimination Law 976 (1982) (“In situations involving discriminatory transfers or promotion policies, back pay will not compensate an aggrieved individual for the period of time prior to the appearance of a vacancy to which he or she can be transferred or promoted. ‘Front pay,’ or compensation at the rate of the job which constitutes the individual’s ‘rightful place’ and calculated for a period of time prior to the appearance of the ‘rightful vacancy’ has been proposed.”).

¹¹⁴ Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 (2nd Cir. 1984) (front pay awarded to age discrimination plaintiff because hostility between employer and plaintiff was too intense to permit plaintiff’s reinstatement to his former position); Shore v. Federal Express Corp., 589 F. Supp. 662, 668 (W.D. Tenn. 1984) (sex discrimination plaintiff terminated after her supervisor ended a sexual relationship with her was awarded five years of front pay in lieu of reinstatement due to her employer’s hostility toward her).

¹¹⁵ See supra notes 37-75 and accompanying text.

¹¹⁶ See discussion of Section 7 rights supra note 24 and accompanying text. See also Smith, supra note 113. But cf. Local 833, UAW-AFL-CIO v. NLRB, 300 F.2d 699 (D.C. Cir. 1962), cert. denied, 370 U.S. 911 (1962) (“[Reinstatement is the only sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy a union.”).

¹¹⁷ For a discussion of the economic limits of a front pay remedy, see infra text accompanying notes 123-26.

¹¹⁸ See statutory language cited supra note 112; see also Parker and Gilmore, The Unfair Labor Practice Caseload: An Analysis of Selected Remedies, 34 Lab. L.J. 172, 173 (1983) (“Despite the authority granted to it under Section 6 of the National Labor Relations Act, the NLRB, with the exception of a few jurisdictional standards, does not engage in substantive rulemaking, preferring instead to operate on an ad hoc, case-by-case basis.”).

¹¹⁹ Parker and Gilmore, supra note 118, at 175. (“The Board is resistant to the concept of rulemaking, arguing that the concept reduces the flexibility needed to cope with changing conditions in the workplace.”).

¹²⁰ See D. Mcdowel L & K. Huhn supra note 99, at 105.

¹²¹ Cf. Local 833, UAW-AFL-CIO v. NLRB 300 F.2d 699, 703 (1962).

¹²² See 55 White Collar Rep. (BNA) No. 10, at 251 (Mar. 13, 1985). (“UFCW Local 400 recently reached agreement with Beverly on a renewal contract covering employees of the Wisconsin Avenue Nursing Home, Washington, D.C…. That contract provides employees with wage increases of 6 percent in each of the contract’s three years … and has been described by Local 400 President Thomas McNutt as ‘the best contract in the U.S. for a Beverly operation.’ ”). But see 114 Lab. Rel. Rep. (BNA) 13 (Sept 5, 1983) (Early in the CARE campaign, SEIU entered into nine contract settlements which included “open shop membership provision, revokable dues deduction provision and wage settlements with average hourly increases of only 10 to 15 cents.”) (quoting James W. Paxton, Assistant Corporate Director for Personnel and Labor Relations, Beverly Enterprises).

¹²³ St. Antoine, A Touchstone for Labor Board Remedies, 14 Wayne L. Rev. 1039, 1040 (1968) (An employer “may well regard an occasional back pay award to a single complaining employee as nothing but a license fee for continuing the violations.”).

¹²⁴ Note, supra note 98, at 81-82. (“[T]he employer, by discharging key union supporters during an organization drive, gains a tactical advantage that reinstatement alone does not restore. The embarrassment of being dismissed while urging fellow workers to stand up to the employer, substantial employee turnover since the discharge, and loss of daily contact with other workers may hinder the reinstated workers from regaining their former influence.”).

¹²⁵ R. Gorman, Labor Law: Unionization & Collective Bargaining 326-27 (1976) (“The most obvious case of violation of Section 8(a)(3) is the discharge of an employee whom the employer knows to be an union organizer and who is discharged specifically in order to penalize the employee, to impede the union’s progress and to instill fear among other employees who would otherwise be sympathetic to the union cause.”).

¹²⁶ Id.