NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Norton Health Care, Inc. d/b/a Norton Audubon Hospital and Norton Suburban Hospital, successor to Audubon Regional Medical Center and Nurses’ Professional Organization, affiliated with United Nurses of America, American Federation of State, County and Municipal Employees, AFL–CIO. Cases 9–CA–31725, 9–CA–32276, 9–CA–33632, and 9–CA–33565–1,–2,–3,–4

August 13, 2007

SUPPLEMENTAL DECISION AND ORDER
REMANDING

By Members Schaumber, Kirsanow, and Walsh

On March 14, 2003, Administrative Law Judge Ira Sandron issued the attached Supplemental Decision and Order. The Respondent filed exceptions, a supporting brief, a reply brief, and an opposition to the Charging Party’s motion to remand. The General Counsel filed an answering brief. The Charging Party filed an answering brief, a motion to remand, and a response to the Respondent’s opposition to its remand motion.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to remand this proceeding to the judge for further findings, analysis, and conclusions consistent with this supplemental decision.

This is a compliance proceeding. In the underlying case, the Board found that the Respondent’s predecessor committed various violations of Section 8(a)(3), (4), and (1) of the Act, ordered appropriate remedies for these violations, and directed a second election based on some of the unfair labor practices.2 Effective September 1, 1998, the Respondent, as a successor employer, assumed ownership of Audubon Hospital (Audubon) (where the unfair labor practices occurred) and Suburban Hospital (Suburban).

The key issues presented here involve the validity of the Respondent’s reinstatement offer to RN Joanne Sandusky; its offers of promotion to RNs Patricia Clark and Martha Ann Hurst; and its obligation to supply the Union the names and addresses of bargaining unit employees at Audubon.

i. the respondent’s reinstatement offer
to rn joanne sandusky

In its earlier decision, the Board found that, in August 1994, the Respondent’s predecessor unlawfully terminated or permanently laid off Sandusky from her lactation consultant position at Audubon. In this proceeding, the judge found that the Respondent’s July 2000 offer of employment to Sandusky as a medical/surgical (med/surg) nurse at Audubon was invalid. At the time that the Respondent offered Sandusky this position, a lactation consultant position existed at Suburban (where most of the nurses in her unit had transferred), and Sandusky was entitled to that position. The judge found, however, that 6 months later, in January 2001, there no longer was a lactation consultant position at Suburban for which Sandusky was eligible.3 Therefore, the judge directed the Respondent to renew its offer of the med/surg nurse position to Sandusky because he found that it was a substantially equivalent position.

We agree with the judge, for the reasons that he set out, that the Respondent’s July 2000 offer of re-employment to Sandusky was invalid. We also agree that the med/surg nurse position is a substantially equivalent position.4 But, based on the Charging Party’s motion to remand described below, we conclude that the issue of the availability of a lactation consultant position for Sandusky has not yet been resolved.

Subsequent to the judge’s decision, the Charging Party moved to remand this case “to the appropriate authority,” essentially to reopen the record, citing newly discovered evidence that a lactation consultant position still existed at Suburban. In support, the Union proffered an affidavit from Sandusky, dated August 26, 2003, in which she asserts that, at a June 2003 professional meeting, she met Tina Martin, who informed her that she had been working as a lactation consultant in the Neonatal ICU at Suburban for about 1 year (and thus had been in this position at the time of the October 2002 compliance hearing).

The Board has stated that “[n]ewly discovered evidence is evidence of facts in existence at the time of the hearing which could not be discovered by reasonable diligence. In addition, in order to warrant a further hearing, the newly discovered evidence must be such that if adduced and credited it would require a different result. See Section 102.48 (d)(1) of the Board’s Rules and Regulations.”5

Here, the proffered evidence, if credited, would show that Martin was employed as a lactation consultant at the time of the compliance hearing and had been hired after Sandusky’s termination. The General Counsel had subpoenaed the names of all the lactation consultants who were employed at Suburban from July 1, 2000 to the time of the compliance hearing, and Martin’s name was not among them. Judy Kees, the Respondent’s human resources director, testified that Debbie Moses was the lactation consultant at Suburban at the time of the hearing, and she did not mention Martin. She also stated that the Respondent had not replaced Lisa Hughes, the lactation consultant the Respondent hired after Sandusky. Based on this, the judge concluded that there was no lactation consultant position for Sandusky to fill in January 2001.

We conclude that the General Counsel acted with “reasonable diligence” in subpoenaing records and questioning the Respondent’s witness. We also conclude that the evidence, if adduced and credited to show that Martin occupies the same or substantially equivalent lactation consultant position as Sandusky, would change the result the judge reached regarding Sandusky’s reinstatement.

Accordingly, we grant the Charging Party’s motion and remand with the direction that the record be reopened for the taking of the additional evidence described in the Charging Party’s motion, plus any rebuttal evidence the Respondent may wish to introduce on this issue.6 The judge shall thereafter issue a second supplemental decision, setting forth, inter alia, any necessary credibility resolutions. If a lactation consultant position exists that Sandusky is entitled to, the judge shall order the Respondent to offer her that position. If no such position exists, the Respondent shall then offer Sandusky the med/surg nurse position described in the judge’s supplemental decision.7

ii. the respondent’s promotion offers to rns
patricia clark and martha ann hurst

In its earlier decision, the Board found that, in January 1996, the Respondent’s predecessor unlawfully denied Clark and Hurst promotions to the patient care leader position, which is now titled clinical coordinator. In so concluding, the Board rejected the contention that the positions were supervisory, and it ordered the Respondent’s predecessor to offer Clark and Hurst those positions. The Respondent did not move for reconsideration or seek court review of the Board’s determination that those positions were nonsupervisory. In July 2000, the Respondent offered Clark and Hurst charge nurse positions8 (which it deemed substantially equivalent positions to the now-abolished patient care leader positions), but it informed Clark and Hurst that it considered the positions it was offering them to be supervisory. The employees declined the offers because they did not want to give up their right to engage in union activity.

The compliance hearing in this matter was held in October 2002. The judge found that the Respondent “acted at its peril” in deciding that the clinical coordinator position was supervisory, but he allowed the parties to present further evidence on the supervisory status of the clinical coordinator position in light of the time that had elapsed since the earlier proceeding, and the Supreme Court’s intervening decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). Analyzing that evidence under then-extant law, the judge concluded that the positions offered were not supervisory and that the reemployment offers to Clark and Hurst were “invalidated by the imposition of [the] improper qualification” that the positions were supervisory. Accordingly, he ordered the Respondent to make new and unconditional offers of clinical coordinator positions to Clark and Hurst.

The issues here are whether the Respondent’s July 2000 offers were valid, and, if not, whether intervening case law casts doubt on the Respondent’s continuing obligation to reoffer the positions to Clark and Hurst.

We agree with the judge’s conclusion that the Respondent’s July 2000 offers failed to comply with the Board’s order and thus were invalid. Unlike the judge, however, we do not find intervening Board law relevant in making this determination.9 The Board ordered the Respondent to offer Clark and Hurst nonsupervisory patient care leader (now clinical coordinator) positions, but the Respondent concededly failed to do so, thus defeating the Board’s purpose of restoring the status quo ante. The Respondent did not timely challenge the Board’s determination that the positions were nonsupervisory, nor does the Respondent argue here that it changed the positions from nonsupervisory to supervisory prior to July 2000, when it made the offers. The Respondent also failed to satisfy its burden at compliance of showing that no substantially equivalent nonsupervisory positions were available.

While we do not apply current Board law retroactively to determine whether the July 2000 offers were valid when the Respondent made them, the supervisory status of the clinical coordinators under current law is relevant to the Respondent’s continuing obligation under the order.

On September 29, 2006, the Board issued its decisions in Oakwood Healthcare, supra, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39, in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, supra. These Board cases specifically address the meaning of “assign,” “responsibly to direct,” and “independent judgment,” as those terms are used in Section 2(11) of the Act.

Accordingly, we remand the issue of the supervisory status of the current clinical coordinator position to the judge for further consideration in light of Oakwood Healthcare, Golden Crest, and Croft Metals, including allowing the parties to file briefs on the issue, and, if warranted, reopening the record to obtain evidence relevant to deciding the issue under the Oakwood Healthcare, Croft Metals, and Golden Crest framework. If the current clinical coordinator position is found nonsupervisory, then the judge’s recommended Order as to Clark and Hurst shall stand. If the judge determines the position is supervisory under the above framework, he shall also determine whether a substantially equivalent nonsupervisory position is available for promotion purposes, and whether (and, if so, when) the Respondent’s backpay obligation tolled.10

iii. the respondent’s ongoing obligation to
furnish the union with the names and
addresses of bargaining unit employees

In the underlying proceeding, the Board found the unfair labor practices of the Respondent’s predecessor at Audubon to be “so numerous, pervasive, and outrageous that special notice and access remedies are necessary.”11 The General Counsel sought a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Also, the Union had lost an election held at Audubon. Due to the almost complete turnover in management since the unfair labor practices were committed, and the time that had lapsed since the March 1994 election, the Board declined to issue a bargaining order. The Board directed a second election and ordered the Respondent, inter alia, “to supply the Union, on its request made within 1 year of the date of this Decision and Order, the names and addresses of its current unit employees.”12 The Respondent complied with three such requests but refused the Union’s request of December 20, 2001, on the ground that the 1-year period referenced in the Order had expired.

Below, the General Counsel argued to the judge that the 1-year period should be extended to fulfill the purpose of the Board’s Order, citing three additional unfair labor practice cases involving this Respondent13 (rather than its predecessor, which committed the unfair labor practices in this case). The General Counsel argued that the Union’s organizing ability has been impeded and noted that the Regional Director had not scheduled the second election “because of the Respondent’s unremedied unfair labor practices.”

The judge concluded that the Board had anticipated both “that the Regional Director would reschedule an election within a period of more or less 1 year” and that the Respondent would not engage in further unfair labor practices. The judge thus extended the names-and-addresses remedy beyond the 1-year period provided for in the Board’s Order. To avoid the Union’s requests being unduly burdensome, however, the judge limited the Respondent’s obligation to fulfilling one request every 6 months until a new election is directed or the petition is withdrawn.

The Respondent has excepted on the ground that the judge’s role in a compliance hearing is limited to applying what the Board has already decided. We find merit in the Respondent’s exception and note that the Respondent did comply with this aspect of the Board’s Order. We thus decline to issue a new order extending the 1-year period, but we note that, once the Regional Director sets the date for the second election, the Respondent will be required to provide the names and addresses of unit employees under Excelsior Underwear, 156 NLRB 1236 (1966).14

ORDER

It is ordered that this proceeding is remanded to the administrative law judge for appropriate action as noted above.

It is further ordered that the administrative law judge shall prepare a second supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order, as appropriate on remand. Copies of the second supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable.

Dated, Washington, D.C. August 13, 2007

______________________________________

Peter C. Schaumber, Member

______________________________________

Peter N. Kirsanow, Member

______________________________________

Dennis P. Walsh, Member

(seal) National Labor Relations Board

David Ness, Esq., for the General Counsel.

Grover C. Potts Jr. and Mitzi D. Wyrick, Esqs. (Wyatt, Tarrant & Combs, LLP), of Louisville, Kentucky, for the Respondent.

Kay Tillow, of Louisville, Kentucky, for the Charging Party.

SUPPLEMENTAL DECISION AND ORDER

Statement of the Case

Ira Sandron, Administrative Law Judge. This matter arises out of a second amended compliance specification and notice of hearing issued by the General Counsel on June 25, 2002, relating to the Board’s Decision, Order, and Direction of Second Election in 331 NLRB 374 (the Order),1 issued on June 22, 2000.

The Respondent assumed ownership of Audubon Hospital (Audubon) and Suburban Hospital (Suburban), effective September 1, 1998. The Order related to the election held at Audubon on March 3 and 4, 1994, and unfair labor practices (ULPs) committed there in the years 1994 to 1996, when Columbia/HCA Healthcare Corporation d/b/a Audubon Regional Medical Center (Columbia) owned and operated both hospitals. The Respondent’s status as a successor employer to Columbia has not been contested.

In its Order, the Board affirmed Judge John West’s findings that Columbia had committed numerous violations of the Act at Audubon. It ordered Columbia and its successors, to, inter alia, offer registered nurses (RNs) Patricia Clark and Martha Ann Hurst patient care leader positions (to which they were denied promotion in mid-January 1996), reinstate RN JoAnn Sandusky to her former position as a lactation consultant (she was “laid off” or terminated on August 9, 1994), and make whole all three employees for their losses resulting from ULPs committed against them because of their activities on behalf of the Charging Party/Union.2 The Board also agreed with the judge that Columbia’s unlawful conduct had interfered with the election, and it directed that a second election be conducted. In light of Columbia’s numerous ULPs, the Board further directed, inter alia, that the Respondent furnish the Union, upon request within 1 year of the date of the Order, with the names and addresses of unit employees.

The General Counsel contends that the Respondent has failed to comply with these provisions of the Order. The Respondent denies any noncompliance, contending that it made valid offers to Clark, Hurst, and Sandusky in July 2000, that the position of patient care leader (retitled charge nurse and then clinical coordinator)3 was and is supervisory, and that it was under no obligation after 1 year from the date of the Board’s Order to furnish the Union with the names and addresses of unit employees.

Backpay and pension contributions for Clark, Hurst, and Sandusky for the period through July 12, 2000, were resolved with Columbia. Therefore, the backpay specifications before me are limited to the period from the third calendar quarter of 2000 through the first quarter of 2002. Further, without conceding liability, the Respondent’s counsel stipulated to the accuracy of the gross backpay, interim earnings, and pension contribution amounts owed to Clark, Hurst, and Sandusky for said period, as contained in General Counsel’s Exhibits 2 through 4.

Pursuant to notice, a trial was held before me in Louisville, Kentucky, on October 21, 22, and 23, 2002, at which the General Counsel and the Respondent were represented by counsel, and the Union was represented by its director of organization, Kay Tillow. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. The General Counsel, the Respondent, and the Union filed posthearing briefs, which I have duly considered.

Upon the entire record in this case, including my observations of the witnesses and their demeanor, I make the following

Findings of Fact

Witnesses for the General Counsel included the following: Clark, Hurst, Sandusky, and Tillow; Supervisory Field Examiner Matthew Denholm; and, under Section 611(c), Judy Kees, Norton’s division director of human resources management (HR) for all of Norton’s hospitals since February 2002, previously HR director of Audubon since July 1999. The Respondent’s witnesses included Kees; Christopher Brown, clinical manger of a med/surg unit; Randa Bryan, manager of the emergency room (ER); Ladonna Thomas, manager of the open heart unit; Charlotte Ipsan, clinical manger of the neonatal intensive care unit (NICU) at Suburban; Laurie Shawn, staff nurse in NICU at Suburban; and Mary Gruebbel, vice president for patient care services. Clark was recalled as a rebuttal witness by the General Counsel.

Background

Audubon and Suburban are among the seven hospitals the Respondent currently owns and operates in the Louisville, Kentucky area. Audubon employs about 1400 employees, including 350 staff RNs or staff nurses, 30–40 clinical coordinators, and 20 clinical managers, who are the next level over the clinical coordinators and who report to department directors. There are a number of units,4 and the average daily census of patients is approximately 200–220.

The Reinstatement Offer to Sandusky

i. facts

The Board found that Sandusky was unlawfully “laid off” or terminated as a lactation consultant (an RN position) at Audubon on August 9, 1994.

Sandusky has been a licensed RN since approximately 1964. She started working at St. Joseph’s, Audubon’s predecessor, as a staff nurse in the intensive care unit in March 1975. In January 1980, she transferred to Audubon, where she became a family support specialist in 1986. In 1987, she was certified as a lactation consultant by an international board, as opposed to the State of Kentucky. She performed lactation consulting on a part-time basis prior to performing such full-time beginning on March 25, 1994.

As a lactation consultant, she worked out of the NICU and developed protocols for the care of mothers who were breastfeeding pre-term or high-risk babies. In addition, she worked with some of the problem breast-feeders in the newborn nursery unit and was occasionally called to be a consultant in pediatrics.

Since December 4, 1995, she has worked full-time (37-1/2 hours a week) as a community health care specialist or nurse care manager for Jefferson County, Kentucky. She makes home health visits to low-income prenatal and postpartum mothers, providing education of a medical nature and suggesting resources. Using her personal automobile for transportation, she is reimbursed for her mileage to see clients but not to and from her office. Her reimbursement rate has always been less than the Federal Government’s rate.5

Pursuant to the Order, the Respondent, by letter of July 12, 2000, from HR Director Kees, offered Sandusky a position as a medical/surgical (med/surg) nurse in one of several units.6 Kees stated that Norton no longer operated a labor and delivery unit or pediatrics department at Audubon and, therefore, the hospital no longer had a lactation consultant position available. She cited Sandusky’s experience in pediatric and neonatology nursing but said that no such positions still existed at the hospital. Accordingly, Kees stated,

Norton does have med/surg nursing positions available to which you could be oriented. . . . Norton believes that the med/surg nursing positions are substantially equivalent positions. You are hereby offered the opportunity to be reinstated immediately to a med/surg nursing position following reorientation to that position.

Kees’ letter implied, but did not directly state, that Sandusky would receive the same pay as the nurse specialist she had been as a lactation consultant. Kees requested that Sandusky contact her to discuss her intentions and interest in the offer. Kees sent a second letter, dated July 25,7 referencing her earlier letter and asking that Sandusky contact her to discuss the issue no later than 5 p.m. on August 1; otherwise, Kees would assume that she was not interested in one of those positions and proceed with other recruiting.

Sandusky responded by letter dated July 26,8 stating that the positions offered in the July 14 letter were not “substantially equivalent” to her prior position. First, her prior position as a family support specialist was a higher grade. Further, the adult staff nursing positions were totally outside of her areas of education, experience, and expertise. She pointed out that Norton had the position of lactation specialist at both its downtown and Suburban locations and suggested that an offer in that area would be appropriate in light of her extensive background in maternal-child nursing.

There was no other communication, either written or oral, between them. The record does not reflect whether Sandusky had received Kees’ second letter (July 25) when she sent her response of July 26. In any event, both of them considered Sandusky’s subsequent failure to respond by the deadline of 5 p.m. on August 1 to constitute a declination of a med/surg nurse position.

Sandusky’s testimony about her experience as a med/surg nurse was not fully consistent. She first testified that she never worked in med/surg after Norton took over Audubon in September 1998, but before then worked “occasionally” in such a capacity (Tr. 44–46), possibly the last time about 12 years ago. Later, she testified that she never worked in med/surg after she was a student, either in 1963 (Tr. 54) or 1970 (Tr. 55). Such discrepancy is not material because, in any event, her experience in med/surg was quite limited. In 1970, she applied for a part-time job in a med/surg unit at another hospital but was told it would be too costly to orient her, because she had been out of nursing school for over 6 years and had not worked in med/surg.

Sandusky testified that she had no training in med/surg, and all of the nursing positions offered were for adult units. She did not know what to do in med/surg in terms of fully assessing a medical or surgical patient, since different IVs and medications are given to adults vis-à-vis neonatal patients. She did concede on cross-examination that patient assessment is a similar process, whether neonatal or adult, but Clark corroborated her testimony that there are major differences between infants and adults in terms of medications and in taking vital signs.

Sandusky further testified that she had spent thousands of dollars to become a lactation consultant and felt that she would be wasting her education if she went to work in a med/surg unit. Additionally, she had been in a nurse specialist position as a lactation consultant, so she had been two grades above a staff nurse position due to her education and nursing experience. On cross-examination, however, Sandusky conceded that, “Most likely” (Tr. 72), she would have been paid at the higher level of nurse specialist had she returned as a med/surg nurse. Kees confirmed this. In any event, Sandusky testified that the matter of pay was not the main reason she declined a med/surg position. Rather, it was the status of returning at two grade levels below what she had been.

In addition, she assumed that she would have to lift and ambulate many patients and feared that because of her size, she could not lift heavy patients and could injure her back. She is 62 years old, slightly less than 5-feet tall, and weighs about 85 pounds, approximately her same weight as in July 2000. She testified about one occasion, about 12 years ago, when she had difficulty lifting a patient from a stretcher to the recovery room, because he was too heavy and also because the stretchers were too high for her. She did not believe that she was ever “pulled” to work in med/surg after that.

However, Clark, who is 65 years old and, at most, 5-feet tall, testified that, as a med/surg nurse, she engages in exertional activity, including lifting, transporting, and walking patients. When she requires assistance, either because of the patient’s weight or the height of the beds, she obtains it. If no one else is around at the moment to assist, “[I] just have to wait until somebody can come and help. . . . I value my health, my back” (Tr. 182). There are no height or weight restrictions for a staff nurse.

In neither her response letter nor her testimony on direct examination did Sandusky indicate that the reorientation mentioned in Kees’ first letter was what concerned her. At the hearing, I asked if she had any knowledge of what reorientation meant. She replied that she understood that there was usually an experienced nurse as a mentor and that she would have to take classes. She then testified that she believed she would have to go back to school for at least a year in order to feel that she could be a nurse on med/surg, an estimated length of time that I find excessive in light of her many years of experience as an RN. She did not inquire further about the reorientation referenced in Kees’ letter because, “I [didn’t] think it would have been adequate” (Tr. 71). Although no specific details or estimated timeframe for reorientation were provided to Sandusky, from the uncontroverted testimony of Kees, Clinical Manager Ipsan, and staff nurse and preceptor Shawn, it appears that such reorientation would normally entail a combination of classroom and on-the-job training and take from 4 to 8 weeks.

It is undisputed that in July 2000, Audubon did not have a labor and delivery, an NICU, or a pediatrics unit, and that the hospital at that time did not have babies delivered in the standard course of its business. In approximately September 1997, the NICU at Audubon ceased operations, and most of the RNs there transferred to Suburban. General Counsel’s Exhibit 16 reflects that the effective date of transfer for those RNs was October 1, 1997. Ipsan, who was the clinical manager of NICU at Audubon and is now clinical manager of NICU at Suburban, testified that she believed all nurses who applied for such a transfer received it. None of those nurses were lactation consultants.

In January or February 1999, the mother/baby unit at Audubon was closed. A number of its nurses were immediately transferred to other Norton hospitals in the area, depending on where there were appropriate positions available. Similarly, in early 1999, the labor and delivery unit at Audubon closed, and many of its RNs went to the labor and delivery unit at Norton’s downtown Louisville hospital; at around the same time, Audubon’s pediatrics units were closed, and most of the nurses who worked in pediatrics transferred to Norton’s Kosair Children’s Hospital. In 2000, at the time Sandusky was offered reinstatement, Kosair had openings in neonatal intensive care.

The record reflects that there have been two full-time lactation consultants at Suburban since 1999. One was Lisa Hughes, whose employment records are contained in General Counsel’s Exhibit 17. She was rehired by Suburban in September 1993, as an RN in the mother/baby unit. In December 1998, she applied for promotion to the position of full-time lactation consultant in that unit, and on January 3, 1999, was so promoted. On January 31, 1999, she transferred in that position to the NICU, where she remained until the time of her termination on January 2, 2001, for excessive absenteeism and tardiness. No one replaced her. The second individual is Debbie Moses, who is still employed in that position, out of the mother/baby unit. Her personnel records are contained in Respondent’s Exhibits 137–143. She was hired at Suburban in September 1988, after applying for the position of staff nurse/lactation consultant. In February 1997, she was promoted from being a staff nurse/lactation consultant at Suburban to a full-time position as lactation consultant at Louisville Market, when both hospitals were still owned by Columbia. She later (February 24, 1998) transferred back in that position to Suburban, at least as far as her evaluations were concerned.9

No one replaced Sandusky as a lactation consultant at Audubon, and there was no such position in existence at the hospital at the time it was taken over by Norton in September 1998.

Two witnesses called by the Respondent, Ipsan and Shawn, testified without controversion that at some point prior to September 1994 (Ipsan put the timeframe as between 6 to 12 months earlier; Shawn as the early 1990s), they were involved in training Sandusky for neonatal nursing. At the time, Ipsan was a charge nurse, Shawn a staff nurse, in the NICU. Ipsan assigned Shawn to be Sandusky’s preceptor in orienting her to take some patient care assignments, because there was not 40 hours’ worth of lactation consultant duties. Ipsan and Shawn’s unrebutted testimony was that Sandusky had difficulties in learning staff nursing duties in NICU.

ii. positions of the parties

A number of issues are presented in this rather complex factual situation. I will only address those that have been pursued by the parties in their posthearing briefs. Thus, while the General Counsel’s brief asserts that Sandusky mitigated her damages, the Respondent does not continue to raise failure to mitigate as a defense against liability. Similarly, the Respondent rebuts what it considers to be the General Counsel’s prior suggestion that Sandusky should have been offered a position in NICU at Suburban, but the General Counsel does not argue this. Therefore, I conclude that, based on the record evidence, the parties have determined to withdraw from my consideration these issues, and I need not further address them.

The General Counsel contends that the Respondent was obliged to offer Sandusky the position of lactation consultant at Suburban, even if it meant firing her replacement (Hughes), because she would have been able to transfer to Suburban in September 1997, had she not been unlawfully terminated on August 9, 1994.10 The General Counsel does not argue that the position of lactation consultant encumbered by Moses at Suburban in July 2000 was an applicable position for purposes of the Respondent’s reinstatement offer to Sandusky.11 The General Counsel further contends that the Respondent did not offer Sandusky a “substantially equivalent position,” because med/surg was so different from her area of expertise and because of her age and size. Finally, the General Counsel takes the position that Sandusky is entitled, as part of the make whole remedy, for unreimbursed mileage expenses.

The Respondent takes the position that Sandusky was offered a substantially equivalent position in view of the fact that there were no lactation consultant positions or even any mother/baby or neonatal units at Audubon in July 2000; she was offered a salary commensurate to her lactation consultant position and reorientation training; and there were no physical demands that would have precluded her from being a med/surg nurse. The Respondent contends that she is not entitled to recover mileage expenses because she is already reimbursed for mileage.

For the reasons stated below, I find that Sandusky should have been offered a lactation consultant position at Suburban in July 2000, and that the offer made to her at that time for a med/surg nurse position was invalid; that when the lactation consultant position encumbered by Hughes was eliminated on January 2, 2001, there was no longer an existing lactation consultant position available for reinstatement purposes, but the Respondent remained obliged to offer Sandusky a substantially equivalent position; that the position of a med/surg nurse was substantially equivalent; and that the Respondent must renew its offer to her for such a position.

iii. analysis and conclusions

The first question that must be answered in determining the efficacy of the Respondent’s July 2000 offer to Sandusky to be a med/surg nurse is whether Sandusky should have been offered a position as a lactation consultant. The record reflects that Sandusky’s position as lactation consultation at Audubon was not filled by any other employees after her unlawful termination in 1994, and no such position exists there today.

However, both in September 1997 and in early 1999, Audubon RNs were given the opportunity to transfer to sister hospitals in the area when their units at Audubon were closed. Sandusky would have been included in the 1997 group had she not been unlawfully terminated in 1994. Accordingly, in terms of Sandusky’s reinstatement, I deem it appropriate to consider lactation consultant positions which currently exist at other Norton hospitals. The Respondent cites12 Fabsteel Co. of Louisiana, 231 NLRB 372, 380 (1977), enfd. 587 F.2d 689, 693 (5th Cir. 1979), for the proposition that a job at a different facility is not substantially equivalent employment. That case is inapposite for several reasons. First, in that case, ULP strikers were offered positions in other geographic areas, requiring relocation; second, there was nothing in the record showing that positions did not exist at the facility where they had previously worked; and, finally, the employees had been offered jobs in those other areas. Here, Suburban is in the same city as Audubon, there are clearly no lactation consultant positions at Audubon, and Sandusky has never been offered a position at Suburban.

Since 1994, Suburban has had two persons in the lactation consultant position: Moses and Hughes. Moses was hired as a part-time lactation consultant in 1988—approximately 6 years prior to Sandusky’s unlawful termination—and was never a “replacement” of Sandusky. Accordingly, I do not deem Moses to be a “replacement” employee for reinstatement purposes and, indeed, the General Counsel does not so contend.

As support for its argument that Sandusky should be reinstated as a lactation consultant, to the position formerly held by Hughes, the General Counsel cites Panoramic Industries, Inc., 267 NLRB 32, 38–39 (1983). The judge therein cited (at fn. 37) Curtis Mfg. Co., 189 NLRB 192, 198 (1971), wherein a discriminatee was ordered restored to her former position of employment even though it meant firing an employee hired after her termination.

Hughes was hired as a lactation consultant in January 1999, after Sandusky was unlawfully terminated. Based on the above authority, I agree with the General Counsel that the Respondent should have offered Sandusky Hughes’ position, even if meant displacing Hughes in that job. Therefore, to the extent that the Respondent did not offer Sandusky a position of lactation consultant in July 2000, the offer of reinstatement was not valid. However, Hughes was terminated on January 2, 2001, and no one replaced her. Thus, there is no “replacement” employee who can be removed from the position for Sandusky’s benefit. The Board’s order of reinstatement in this case does not require that the Respondent now create a job of lactation consultant when no such job exists: on the contrary, using standard remedial language, the Order explicitly states, “or if such job no longer exits, to a substantially equivalent position of employment.” Accordingly, I conclude that the Respondent’s obligation to offer Sandusky a position as a lactation consultant ceased at the time that Hughes was terminated and not replaced. Therefore, the Respondent’s backpay liability for this aspect of the reinstatement offer extended only through January 2, 2001.

The next question is whether the Respondent’s July 2000 offer to Sandusky to become a med/surg nurse, although invalid when made, became valid on January 2, 2001, when the formerly available position of lactation consultant was effectively abolished. I note that since Hughes position has not been refilled, presumably it was determined by management at a certain point that no lactation consultant was needed in her place. It is logical, therefore, to assume that had Sandusky been reinstated to a position of lactation consultant in July 2000, she likely would have been laid off or transferred at some point after January 2, 2001.

In any event, I must now determine whether the July 2000 offer to Sandusky to become a med/surg nurse was valid after January 2, 2001, as constituting reinstatement to a “substantially equivalent position.” If this is answered in the affirmative, then the last question is whether the Respondent was under an obligation after January 2, 2001, to reoffer such a position and, if so, when.

The reinstatement letter Sandusky received implied that she would not lose any pay as a med/surg nurse vis-à-vis what she would have been paid as a lactation consultant, and Kees confirmed this in her testimony. The issue of “substantially equivalent” in this case thus does not relate to remuneration but to terms and conditions of employment.

Although Sandusky testified that she did not believe she could handle the physical demands of a med/surg nurse position, Clark, who is of similar size and age, testified that she receives assistance from other staff members when necessary. Moreover, there are no height or weight restrictions for med/surg nurses.

Not having worked as med/surg nurse for many years, Sandusky reasonably concluded that she would require reorientation for the position. Unquestionably, there were differences between her work with newborn babies and their mothers and the types of skills required of handling adult patients. However, the Respondent did offer Sandusky reorientation training. Sandusky assumed it would be a very lengthy process, but she made no inquiries of management to find out exactly what the reorientation would have entailed. I believe she had a duty of inquiry in those circumstances, to obtain more information from the Respondent rather than to base her conclusions solely on assumptions. From the uncontroverted testimony of management witnesses, it appears that such training might have lasted anywhere from 4 to 8 weeks, far less onerous than the year period that Sandusky testified she feared. Sandusky was an experienced RN and was offered an RN position, albeit not a specialized one, as she had previously held. I conclude that the med/surg position was “substantially equivalent” and, had there been no lactation consultant position at Suburban in July 2000, the offer of reinstatement made by the Respondent would have been valid.

However, I have concluded that there was such a lactation consultant position and that it existed until January 2, 2001. The final question is whether the Respondent, after January 2, 2001, was obliged to renew its offer to Sandusky of a med/surg position, even though she had previously turned it down. Although it could be argued in other contexts that the Respondent should not be required to do so, based on the presumed futility of such an action in light of Sandusky’s earlier rejection, this is a compliance proceeding, and the Board has already determined there was unlawful discrimination against Sandusky. Therefore, any questions about compliance obligations on the part of the Respondent should be decided in her favor.

Moreover, Audubon has an established practice of allowing RNs to transfer to other positions when their positions have been eliminated. Based on this, I conclude that had Sandusky been presented with, and accepted, a valid reinstatement offer for the lactation consultant position in July 2000, she would have been able to transfer to other positions (i.e., in med/surg) if her lactation consultant position had been eliminated after January 2, 2001.

Based on these considerations, I conclude that the Respondent, since January 2, 2001, has remained under an obligation to renew its offer to Sandusky to work as a med/surg nurse and that the Respondent’s backpay obligation continues until such time as that offer is made.

Finally, as to mileage reimbursement, I find that Sandusky is entitled to the amount calculated by the General Counsel. It is well-established Board law that travel expenses a discriminatee incurs in maintaining interim employment, beyond what she would have incurred had she continued working for the subject employer, are properly deducted from interim earnings (or, conversely, are reimbursable). Uarco, Inc., 294 NLRB 96, 102 (1989); Aircraft & Helicopter Leasing, 227 NLRB 644, 649 (1976), enfd. 570 F.2d 351 (9th Cir. 1978); Hoosier Veneer Co., 21 NLRB 907, 938 fn. 26 (1940). This result logically flows from the broader precept that in compliance proceedings, the Board attempts to reconstruct “‘as much as possible,’ the economic life of each claimant and place him in the same financial position he would have enjoyed ‘but for the illegal discrimination,’” Cobb Mechanical Contractors, 333 NLRB 1168, 1168 (2001), citing Phelps Dodge Corp., 313 U.S. 177, 194 (1941).

The Offers to Clark and Hurst

i. background

As noted earlier, both Clark and Hurst have remained employed as RNs at Audubon since they were unlawfully denied promotion to patient care leader (now entitled clinical coordinator) in mid-January 1996. The Order required the Respondent to offer them such promotion. Issues relating to the validity of the July 2000 offers the Respondent made to them are intertwined with the issue of whether clinical coordinator is a statutory supervisory position within the meaning of Section 2(11) of the Act.

The Board adopted Judge West’s determination that the patient care leaders were not statutory supervisors within the meaning of Section 2(11) of the Act. It is not necessary for me to recite in detail all of his specific findings in this regard. Suffice to say, he concluded that the functions performed by the patient care leaders which went beyond patient care were routine in nature and did not require the use of independent judgment under Section 2(11) of the Act. He therefore included them in the unit.

The Respondent contends that I should revisit this issue, in light of developments in the law that occurred since the hearing in the previous case concluded on February 12, 1996, and the Order issued on June 22, 2000, in particular, the Supreme Court decision in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). The Respondent further contends that the clinical coordinators have been supervisors under the Act since the time when it took control of the hospital in September 1998. The General Counsel and the Union take the position that the clinical coordinators were properly deemed unit employees in the prior case and remain so.

ii. facts

By letters of July 14, 2000,13 the Respondent offered Hurst and Clark, respectively, positions as charge nurses, pursuant to the Order. In said letters, Kees stated,

The Charge Nurse position has evolved since [September 1, 1998] to include more management responsibilities. Effective March 1, 2000, Norton transitioned to change Charge Nurse positions with a revised Job Description reflecting the increased management responsibilities of the position.

It is the position of Norton that the Charge Nurse position is a substantially equivalent position to the Patient Care Leader position which was abolished at Norton. Accordingly, Norton is prepared to offer you a Charge Nurse position. Enclosed herewith you will find a copy of the current Job Description for the Charge Nurse position at [Audubon]. Further, you should be advised that is the position of Norton that persons occupying regular Charge Nurse designations . . . are supervisors within the meaning of [the Act].

Hurst was offered a full-time (1.0 status or 40 hours per week) position as charge nurse on CVU, and Clark was offered a full-time position as charge nurse on unit 3E, with accommodation for her then-existing medical restriction. Charge nurse job descriptions were attached.14

By letters dated July 24 and 26,15 respectively, Clark and Hurst responded identically that:

I am concerned that the job offer of July 14, 2000 as it is stated in your letter would be supervisory and would therefore deprive me of my Section 7 rights under federal law. The offer, as you place it, would end my freedom to participate in union and concerted activity. This is a problem for me, and I need some time to consider this.

. . . As the Nurses Professional Organization, we have a written protest to the NLRB over this matter, and I would like to await the outcome of that protest.

There was no further communication between the Respondent and Clark and Hurst regarding the offers. Clark (who is still union president) and Hurst testified, consistently with their response letters, that they declined the offers because they did not wish to give up their right to engage in union activity.

iii. the legal framework

Here, the Respondent conditioned its offers of promotion to clinical coordinator (charge nurse) on the employees’ acquiescence in the Respondent’s assertion that clinical coordinators are statutory supervisors. The offers contained the clear message that the employees would forfeit their rights to engage in union activities if they accepted promotion.

Preliminarily, I do not conclude that the Respondent, in contending that the clinical coordinators are supervisors, was motivated by a desire to place Clark and Hurst, two of the most identified union leaders, in an untenable position. Nevertheless, I must determine whether the Respondent placed a condition on the offers that invalidated them, with the result that its backpay obligations to Clark and Hurst continued past July 2000, and further offers of promotion must be made.

It is well established that an employer has the burden of proving that it made a valid offer of reinstatement tolling its backpay obligation and that such offer was sufficiently unequivocal and unconditional. Beverly Cafeteria Corp., 329 NLRB 977 (1999); Tony Roma Restaurant, 325 NLRB 851 (1998). I therefore reject the Respondent’s contention, made at the hearing, that Clark and Hurst could have accepted the offers and later contested the Respondent’s position in a ULP proceeding, or through some other means. That would have placed them in a very difficult situation, particularly because it would appear that an employer, after a reasonable period of time, can discharge an employee reinstated to a supervisory position for continuing to engage in union activities. See Oil, Chemical & Atomic Workers International Union, 547 F.2d 575, 589 fn.16 (D.C. Cir. 1976). The Board has already found that Clark and Hurst were the victims of unlawful discrimination, and placing the onus on them to challenge the Respondent’s legal assertion that clinical coordinators are supervisors would be unfair and unreasonable. In any event, as noted above, the burden is on the employer to show that its offer was not conditional, not on the employee to accept a condition and later challenge its validity.

Significantly, this is not a case of first impression on the issue of the status of clinical coordinators. The month before the July 2000 offers were made, the Board found that the position was nonsupervisory and included in the bargaining unit.

In light of these considerations, I conclude that the Respondent, although certainly free to believe and argue that the status of clinical coordinators had changed since the ULPs had been committed by its predecessor, acted at its peril in unilaterally deciding that the position was now supervisory and that it could force Clark and Hurst to choose between the promotion and remaining active in union affairs. See Central Cartridge, Inc., 236 NLRB 1232 (1978), in which the Board held invalid an employer’s offer to reinstate an employee “as a supervisor,” when the position was ultimately determined to be nonsupervisory.

For the reasons stated below, I find that the clinical coordinators are not statutory supervisors within the meaning of Section 2(11) of the Act and that the Respondent’s offers of promotion to Clark and Hurst were invalidated by the imposition of an improper qualification.

iv. the status of clinical coordinators

A. Facts

Considerable evidence, documentary and testimonial, was presented on this issue. Although two timeframes are relevant (July 2000, when the offers were made, and the present), none of the parties have contended that there have been any significant changes in the role and duties of clinical coordinators since July 2000. I also note that the large number of nursing units and staff, described earlier, may understandably result in some variations in the application of hospital-wide policies and procedures.

I give most weight to the testimony of Randa Bryan, Christopher Brown, and Ladonna Thomas, for the following reasons. All three answered questions readily and without hesitation, appeared candid, and did not appear to make any efforts to skew their answers to make clinical coordinators supervisory. They were generally quite consistent in terms of hospital policies and the practices with which they are familiar. Significantly, Brown and Thomas are now clinical managers but have had experience as clinical coordinators.

Brown is the clinical manager for a 36-bed med/surg unit. He normally supervises three clinical coordinators and reports to the unit’s director. Before becoming clinical manger in March 2000, he was a clinical coordinator in the intensive care unit since late 1998 or early 1999. His testimony primarily concerned his relationship as clinical manager with the clinical coordinators who report to him. Bryan has been manager of the ER since 2001. Prior thereto, she was simultaneously the manager of several units from January or February 1998 on. She supervised about 130–134 employees, of whom about three-fourths were RNS and 11 were clinical coordinators. Bryan’s testimony sometimes related only to her previous position as manager of several units, but at other times was based on her current position. Thomas has been the manager of the open-heart unit for about a year; before that, she was a clinical coordinator in one of the open-heart units (under Bryan) and supervised about 30 RNs. Her testimony generally related to her experience as a clinical coordinator.

Kees and Clark also testified in detail on the status of clinical coordinators. Kees was generally credible, but she is more removed from day-to-day operations by virtue of her position in higher management. The same holds true for witness Mary Gruebbel, who has been vice president for patient care services for Norton Health Care since September 1, 1998. Patient care services entails in-patient units, emergency services, and surgical services. Moreover, Gruebbel’s testimony was quite limited in scope.

In contrast to her credible testimony on direct examination, Clark’s testimony on rebuttal was only partially credible. In the latter, on matters relating to RN scheduling, her answers were direct, clear, and confident. However, on the subject of the authority of clinical coordinators, and RNs in general, she was markedly evasive and nonresponsive.16 Further, recognizing the medical hierarchy and the greater status and medical knowledge that RNs possess, compared to licensed practical nurses (LPNs), I find implausible her testimony that as an RN or even as an acting clinical coordinator, she has no authority over LPNs who are not correctly performing their patient care responsibilities. However, inasmuch as I do not find it necessary to rely on this aspect of her testimony for any of my factual or legal conclusions in this case, I need not further discuss it.

1. General role and status

Job descriptions for clinical coordinators and clinical managers, used through the years, are contained at Respondent’s Exhibits 146–152. Inasmuch as formal job descriptions are not dispositive of supervisory status, I will not set out their contents here. Suffice to say, the basic description of the duties of clinical coordinator has not changed significantly since at least February 12, 1998,17 albeit there has been some changes in nomenclature and in format, and an expansion of enumerated responsibilities.

Kees testified that there has been an initiative by Norton since September 1, 1998, to ensure that clinical coordinators are positioned to assist charge managers in running their departments. Operations at the hospital are continuous, 24 hours a day, 7 days a week, and managers cannot be there all the time. Part of this initiative involved getting more clinical coordinators to participate in evaluations and discipline on a formal basis. A training program for clinical coordinators was instituted, wherein they received training on how to fill out an evaluation, how to coach and counsel, and how to prepare a performance improvement plan (PIP). They were also trained on how to interview, such as at job fairs, but recruitment techniques have changed since then. A management development program was extended on January 1, 2001, to all supervisors, including clinical coordinators, who now receive such training. Clinical coordinators work with educators (nonstaff nurses) in the orientation of new employees, but educators and preceptors (staff nurses) are the ones who decide whether an employee passes his or her orientation.

Although Kees testified that clinical coordinators may interview and hire new employees, neither she nor any other witness of the Respondent gave any specific instances or numbers. In any event, she testified that actual hiring is done through HR, which makes the formal job offers. Therefore, I need not further address clinical coordinators’ role in this area.

Brown and Bryan testified very similarly as to their view of the role of clinical coordinators. Thus, Brown testified that “clinical coordinators are my eyes and ears” (Tr. 384), while Bryan testified that when she was clinical manger of several units, she saw them as “extensions of myself . . ., my right arm” (Tr. 436). Both testified that clinical coordinators run the unit and make decisions in the absence of the clinical manager. Brown’s clinical coordinators keep him informed of all staff situations that arise in his absence, either by pager or phone or when he comes in the next day. They discuss the issue and determine what needs to be done. Bryan worked almost 12-hour days and was accessible 24 hours a day.

Clinical coordinators, as well as acting clinical coordinators (clock charge nurses) receive a 5-percent pay differential an hour. They do not receive any other benefits vis-à-vis staff nurses. As Brown and Thomas testified, when clinical coordinators are not engaged in clinical coordinator duties, they perform patient care services as RNs.

2. Role in evaluations and PIPs

Respondent’s Exhibits 5 through 134 represent nursing staff personnel records from January 1, 2000, to the present. Included are evaluations of RNs, LPNs, nurses’ aides or patient care associates (PCAs), technicians, and unit secretaries. Most are annual reviews, a few 6-month or transitional (probationary) evaluations. Most were signed by both a clinical coordinator and a clinical manager, although not always on the same date. Some had notations written by clinical coordinators and/or clinical managers.

Kees testified that such evaluations have been used for developmental and nonmonetary—morale—rewards, or “pats on the back” (Tr. 165). In 2000, all increases were at the same percentage amount, regardless of an employee’s evaluation.

Kees additionally testified that evaluations, transitional (probationary) or annual, are given to the employee either by the clinical coordinator or the clinical manager. However, the similar testimony of both Brown and Bryan reflects that the clinical managers review the proposed evaluations made by clinical coordinators, have the authority to change them, and may do so on occasion. Thus, Brown testified that in the 90-day evaluations of new employees, clinical coordinators have significant input because they are directly involved in patient care activities. He candidly stated on direct examination that, in terms of regular or annual evaluations presented to him by clinical coordinators, he has disagreed with their ratings on a few occasions and changed them.

Bryan testified that clinical coordinators filled out evaluations. For the most part, she trusted their judgments and rarely made her own comments. Sometimes, she questioned a clinical coordinator about the rating level assigned. Although she did not make the clinical coordinator change the rating in that situation, the latter had to support it. She could not recall a particular time when she made a clinical coordinator change a rating but testified that it was possible that may have occurred. Thomas testified that when she was a clinical coordinator under Bryan, Bryan accepted all of the transitional (90-day) or yearly evaluations she wrote.

Regarding PIPs, Kees testified that they are not disciplinary but can result in discipline if there is lack of improvement. Further, PIPs resulting from an annual evaluation are “unusual” (Tr. 287). According to hospital policy, the department director must concur in the decision to place an employee on a PIP. Kees is consulted for approval of a PIP before there is a meeting with the employee by either the clinical coordinator, clinical manager, or director, or a combination thereof. Although department managers have the authority to change the decision of someone below as to placing someone on a PIP, she was not aware of any instances in which this has occurred. She could not give any examples of when a clinical coordinator has made the final decision as to whether someone passed or failed a PIP. Bryan’s testimony on the subject was generally consistent with Kees. She and her clinical coordinators worked together to formulate and implement PIPs, and the clinical coordinators were responsible for overseeing it. Putting someone on a PIP was a joint decision between her and the clinical coordinator, but she had the ultimate decisionmaking authority. She agreed with the clinical coordinator approximately 95 percent of the time. She could not think of any situations when the clinical coordinator implemented a PIP without talking to her.

Kees testified that an employee who does not pass the transitional 90-day evaluation may be given additional time to improve. A clinical coordinator can extend the transitional period, but a clinical manger or director of the unit would have to decide whether to accept such recommendation. Brown’s testimony comported with hers. He testified that if a probationary employee needs extension of the orientation period, he is the one who can extend it, placing “significant reliance” on the recommendation of the clinical coordinator (Tr. 393). Only once or twice during his tenure as a clinical manager has the 90-day period been extended, and on those rare occasions, he followed the recommendation of the clinical coordinators.

Regarding an employee’s transfer to another department, that can result from failure to pass a PIP, Kees testified that a clinical coordinator or clinical manger can exercise that authority. However, she could not cite any specific occasions when a clinical coordinator has actually exercised such authority, and she conceded that even though a clinical coordinator may initiate a transfer, the clinical manager is to going to be involved. In any event, she testified, it is the employee’s decision in those situations whether or not to accept the transfer.

In summary, based on the above, I find the following:

1. Annual evaluations do not result in any financial impact on employees or in the direct imposition of any form of discipline,

2. Ninety-day probationary periods are rarely extended based on evaluations, and the record does not establish that anyone has been terminated based on a 90-day evaluation.

3. Clinical coordinators prepare evaluations but must discuss them with clinical managers, who retain the authority to change them and occasionally do so.

4. Clinical coordinators have significant input into putting someone on a PIP, but the ultimate decisionmaking authority lies with clinical managers, with required participation by HR.

5. PIPs are rarely imposed.

6. Clinical coordinators may initiate employee transfers, but clinical manager must become involved and, ultimately, the subject employees decide whether or not to accept them.

3. Role in discipline

At all times material, the Respondent has maintained a progress discipline policy, last revised on January 1,